Engelberg Center on Innovation Law & Policy

Innovation Law & Policy Empirical Research Initiative

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The Innovation Law & Policy Empirical Research Initiative is a project of the Engelberg Center on Innovation Law & Policy at NYU School of Law. The Initiative focuses on the empirical study of the interplay between law, policy, and innovation, in order to support data-driven reform of intellectual property law and other legal rules that affect innovation. The initiative addresses the growing need for empirical evidence to support and promote reform on a number of levels. Partnered with Google.

The Need

We are seeing an explosion of activity around the issue of intellectual property law reform, from both the public and private sectors. A wide spectrum of stakeholders—academics, policy advocates, industry leaders, intellectual property lawyers, and even the President—are now pushing for changes to intellectual property law and policy that they believe will promote innovation while balancing the interests of creators and consumers. 

Now, perhaps more than ever before, those seeking to bring about change within the innovation law and policy landscape can be optimistic. For example, the America Invents Act was the first major piece of legislation to amend the US Patent Act in over 50 years, and follow-on legislation and executive action aimed at identifying and taming abusive patent litigators—what some have referred to as “patent trolls”—is ongoing. We also see the beginnings of a process that could culminate in a major reassessment of US copyright law. Heeding the call of the US Copyright Registrar that it is time for the “next great Copyright Act,” Congress has started a series of hearings designed to explore whether US law is able to keep pace with changing technologies and whether the balance between private rights to control copyrighted content and public access to that content must be reset. 

While these initiatives are commendable, it would be unfortunate if intellectual property reform proceeds as lawmaking usually has in these areas—as a clash of interest groups, largely uninformed by data. To avoid a reprise of the interest-driven policymaking of the past, we need a greater understanding of how law and policy affect innovation and creative production, with a particular emphasis on empirical research and analysis that shed light on those effects. Unfortunately, there are major gaps in our empirical understanding that impede effective policy analysis.

In the patent arena, despite important empirical work over many years from scholars in law, economics, the history and sociology of science, and social anthropology, many basic questions remain unresolved, including:

  • how to choose between patents, prizes, commons arrangements, non-profit research and other mechanisms for promoting innovation, 

  • whether patent rules should be varied according to industry, 

  • the effects of patenting on sequential innovation, information sharing, and downstream markets, 

  • the relationship of patenting to the design of firms, patent pools and other licensing arrangements, 

  • the optimal design of aspects of patent doctrine such as nonobviousness, term length, scope, and disclosure

  • the optimal design of administrative institutions for promoting innovation

If anything, the empirical basis for copyright policymaking is even more poorly developed. There is some valuable recent work on the effect of lengthy copyright terms on the market for books, the endowment effect and its application to transactions in IP, and legal/anthropological work on the norms and practices of particular innovation communities (which bears also on patent). But despite this work and other recent efforts, in a recent report, the National Academies of Science concluded that the empirical foundation for copyright policymaking is relatively sparse, typically confined to academic publications, and often insufficiently developed to be relevant to policymakers.

The need for empirical research extends beyond patent and copyright into other areas of intellectual property, such as trademark and trade secret. On the whole, empirical work on innovation law and policy would benefit from the inclusion of more interdisciplinary perspectives and collaboration. As a result, basic questions, such as how to meaningfully measure the impact of patent and copyright on both primary and sequential innovation, continue to go unanswered. Furthermore, there is a need for exploring new pathways for getting data to policymakers in a form that they can understand.
 

Initiative and Objectives

The Innovation Law & Policy Empirical Research Initiative is a project of the Engelberg Center on Innovation Law & Policy at NYU School of Law. The Initiative focuses on the empirical study of the interplay between law, policy, and innovation, in order to support data-driven reform of intellectual property law and other legal rules that affect innovation. The Initiative addresses the growing need for empirical evidence to support and promote reform on a number of levels. 

More than a broad survey of behavior across the various intellectual property fields, the project consists of qualitative and quantitative research into specific areas of inquiry. The Engelberg Center will work in collaboration with other departments throughout NYU, such as the social sciences, business, engineering, and film schools, as well as with others throughout the greater intellectual property law and empirical research communities. It will convene a large interdisciplinary network of academics, researchers, and other professionals to: 

  • Design and develop new research methodologies better suited to gathering data in the innovation space; 

  • Develop expertise necessary to undertake studies of important IP institutions, such as the Federal Circuit and the PTO;

  • Identify highly relevant qualitative and quantitative metrics;

  • Identify and undertake specific and discrete research projects (e.g., analyzing USPTO patent quality metrics);

  • Build sustainable technological systems for automatically gathering, updating, and visualizing data; 

  • Develop and suggest project proposals and potential methodological ideas, for interested researchers to pursue future research on; 

  • Train junior scholars in effective research methodologies for undertaking empirical IP research; and

  • Create new, more efficient, pathways for disseminating research to media, policymakers, and reformers. 

The Initiative is driven through the convening of conferences/workshops, the development of technological tools, and the sponsorship of particular empirical research projects.
 

Projects

As one of the premier intellectual centers in the country studying the effects of law and policy on innovation, and in particular how those relationships bear on the public interest, the Center houses many of the top academic thought leaders in intellectual property, many of whom are already doing exciting empirical work in the innovation law and policy space. 

The Engelberg Center is located at NYU, a top university with a wealth of schools, centers, and programs and thus uniquely situated to leverage and connect a broad spectrum of expertise and knowledge throughout the NYU community.

Beyond the NYU community, the Center is positioned well within both the local science and technology community and the greater global innovation community. Our projects draw heavily on our expansive network in order to bring together the expertise necessary to address the growing need for empirical evidence to support and promote reform.

Empirical Study of Substantial Similarity in Courts

An empirical study of all district and appellate court decisions on substantial similarity in copyright law to assess the effect of various doctrinal choices on case outcomes and understand the implications of the Second and Ninth Circuits’ different frameworks for analyzing copyright infringement. This project is a collaboration between Professors Barton Beebe and Jeanne Fromer, Neil Netanel (UCLA School of Law) and Matthew Sag (Loyola University School of Law).

Experimental Studies of Incentives in Intellectual Property

A series of experiments testing the differential effects of rules conditioning protection of creators’ work on the creators achieving certain thresholds of creativity. The experiments are meant to model existing copyright and patent laws, which set very different thresholds for the amount of creativity necessary to secure IP rights. The project will culminate in an article describing the data gathered and discussing the implication for IP law and policy. This project is a collaboration between Professors Jeanne Fromer and Christopher Sprigman(NYU School of Law), and Christopher Buccafusco (IIT Chicago-Kent College of Law).

Experimental Studies of Sequential Innovaiton Rules in Intellectual Property

A series of experiments testing the differential effects of IP rules governing the right of follow-on creators to build on other’s pre-existing work. The experiments are meant to model existing copyright and patent laws, which contain very different rules governing sequential innovation. The project will culminate in an article describing the data gathered and discussing the implication for IP law and policy. This project is a collaboration between Professor Christopher Sprigman and Christopher Buccafusco (IIT Chicago-Kent College of Law), Stefan Bechtold (ETH-Zurich), and Zachary Burns (Northwestern University).

Knowledge Commons Governance

A framework for understanding how IP law interacts with social norms and institutions to govern and potentially enhance or inhibit innovation and creativity. The framework is based on Nobel Laureate Elinor Ostrom’s application of case-study-based research in the natural resource context. Current work on this project is focused on studying the governance of the NIH Rare Disease Clinical Research Network and its member consortia. The project will convene a series of workshops on knowledge commons governance, including a May 2014 workshop on knowledge commons governance in the medical arena. An edited volume based on an initial workshop held at NYU last fall will be published in 2014. This project is a collaboration between Professor Katherine Strandburg and Brett Frischmann (Cardozo Law School) and Michael Madison (University of Pittsburgh School of Law).

User & Open Innovation

A research agenda for exploring the implications of user and open innovation for patent theory and doctrine. User and open innovation concepts are employed to illuminate the patentable subject matter doctrine and to advocate certain infringement exemptions, as well as to understand physician attitudes toward patenting. This project is led by Professor Katherine Strandburg.

Wealth & Health in Latin America

A book analyzing the implementation of international obligations regarding patent law in Latin America. In particular, the book asks why it is that some countries have managed to maintain access to low-cost medicines and others have not. The book includes empirical studies of 11 countries designed to identify factors that lead to a good outcome, along with short commentaries from a variety of scholars. Along with César Rodríguez Garavito of the Universidad de los Andes Law School in Colombia, the book is edited by Professor Rochelle Dreyfuss published by Oxford University Press.

 

Inaugural Conference

October 24-25, 2014
NYU School of Law
Agenda

The Innovation Law & Policy Empirical Research Initiative launches via a two-day conference that will bring together leaders in the empirical study of intellectual property, as well as other empirical scholars and researchers interested in turning their skills to the study of innovation policy.

The mission of the Empirical IP Research Conference is twofold:

  1. To present compactly the existing body of empirical work in copyright, patent, and other areas of innovation law and policy, to consider where progress has been made toward producing policy-relevant evidence, and, most importantly, identifying the most important policy-relevant questions that are poorly studied.
  2. To launch a discussion of directions and methods for future research via presentation of a select number of state-of-the-art papers. The focus will not be on presenting a large number of papers, but on deep discussion of the problems that motivate the research, methodological challenges, and questions raised by the papers that present immediate research opportunities. Throughout, the focus will be on producing data that is—at least eventually, if not immediately—policy-relevant.