Christopher Buccafusco and Jonathan Masur ‘Intellectual Property Law and the Promotion of Welfare’

This paper – a University of Chicago Public Law & Legal Theory Paper Series, No. 607 (2017) available here – focuses on the relationship between IP and welfare. Broadly speaking, the paper is devoted to examining the various types of theories underpinning IP law (i.e. IP law’s deeper normative goals) in the US context. As the authors put it: “Most courts and scholars agree with the idea that IP law should provide incentives to creators, but there has been almost no analysis of why creativity and innovation are good. This is simply taken as given.” Their goal is to discuss the variety of ways in which one can understand the normative goals of IP regimes. The basic argument is that the main goal of IP laws should be to maximize social welfare, where welfare is understood as subjective well-being. However, and although there is broad consensus that the law should promote good outcomes, there has been less discussion of the kinds…

Jorge L. Contreras ‘FROM PRIVATE ORDERING TO PUBLIC LAW: THE LEGAL FRAMEWORKS GOVERNING STANDARDS-ESSENTIAL PATENTS’

This paper, focusing on the interaction of standards and international law, was published in the Harvard Journal of Law & Technology, and can be found here. It starts from the observation that there is a “basic question [about] whether technical standard setting is best conceptualized as a private activity governed most efficiently by its own internal rules and procedures, or whether it is at root a public activity that should be regulated within the sphere of public law.” The article proceeds as follows: after a general introduction to private ordering structures (i.e. rules systems that private actors conceive, observe, and often enforce through extra-legal means) in Part II, Parts III and IV describe how technical standard setting has evolved as a private sector activity. Part V analyses the incorporation of standards bodies’ rules and norms into private law adjudication. Part VI shifts the focus to the public benefits that standard setting affords, and Part VII describes the recent debate regarding public…