NYU School of Law

Colloquium on Innovation Policy
Professors Rochelle Dreyfuss, Harry First, and Diane Zimmerman

Schedule
Spring 1997

January 16, 1997
Wendy Gordon, Boston University Law School
Philosophical and Economic Underpinnings of Intellectual Property Theory

January 23, 1997
Susan DeSanti, Director of Policy Planning, The Federal Trade Commission
The Intersection of Competition and Intellectual Property Law: Policy and Cases

January 30, 1997
Dorothy Nelkin, University Professor, New York University
Body Wars: Disputes Over Biotechnology Innovations

February 6, 1997
Richard Gilbert, University of California, Berkeley, Department of Economics
An Economic Analysis of Refusals to License Intellectual Property

February 13, 1997
Zvi Griliches, Harvard University, Department of Economics
Are the Returns to R & D Slowing Down?

February 20, 1997
Stanley Liebowitz, University of Texas, Department of Economics
Network Externalities in the Computer Field

February 27, 1997
Glynn Lunney, Tulane University School of Law
The Economic Structure of Copyright

Professor Lunney suggests as reading for the colloquium, (in order of importance), the following pages from Glynn S. Lunney, Jr., Reexamining Copyright's Incentives-Access Paradigm, 49 Vand. L. Rev. 483 (1996):
579-604 and 628-646: the most essential to understanding the approach to copyright's proper scope.
1. 571-79: the joint value discussion contains important insights into why a natural rights, or value-based return, approach to copyright is inappropriate.
2. 605-28 and 646-54: familiarity with the empirical or application sections will help someone follow the application of the model to reach particular rules, but is somewhat dry and contains lots of numbers.

March 6, 1997
Suzane Scotchmer, University of California, Graduate School of Public Policy
Sequential Decisionmaking in Research and Development

March 7, 1997
Robert Merges, University of California, Berkeley, Boalt Hall School of Law
Contracting into Liability Rules: the Case of Patent Pools
[NB: The date is Friday 12-2:30, rather than the usual Thursday 4-6.]

March 27, 1997
F.M. Scherer, Harvard University, Department of Economics
Market Risk and the Profitability of Technological Innovations

April 3, 1997
Rebecca Eisenberg, University of Michigan School of Law
Technology Transfer and the Human Genome

April 10, 1997
Woody Powell, University of Arizona, Department of Sociology
Redefining the Boundaries of the Firm: Networks of Learning in Biotechnology

April 17, 1997
Brian Kahin, Kennedy School, Harvard University
Rights on the Internet

April 24, 1997
Edward Wolff, New York University, Department of Economics
Specialization and Productivity Performance in OECD Manufacturing Industries

The Colloquium meets 4-6pm in Room 311, Vanderbilt Hall, 40 Washington Square South. If you would like to attend or to receive a copy of the paper, please contact Alex Pietropinto at (212)998-6013, or by e-mail at engelberg.center@nyu.edu

Course Description

The Colloquium will address core issues relating to innovation: What is innovation and why do we want it? What are the incentive structures for innovation and how do various legal regimes affect these incentive structures?

The Colloquium has two components, a weekly seminar meeting on Tuesdays and a weekly paper presentation on Thursdays. Students are required to attend both. The paper presentations will also be open to invited scholars and lawyers who will participate in the discussion. The weekly colloquium topics and a list of the papers and presenters are attached.

Course Organization

The Tuesday seminar will have a prospective and a retrospective component. The prospective component will focus on analyzing the paper to be presented at that week's Thursday meeting and on discussing the major legal and policy issues raised by the paper. The retrospective component will review the discussion of the previous week's paper in light of the points raised by the author and discussants. To assist the prospective discussion, all students will be required to submit a paper (not to exceed 5 pages) analyzing and critiquing the next paper to be presented ("Analysis Paper"). To assist the retrospective discussion, two students each week will be assigned to make a brief oral presentation critiquing the previous week's discussion.

Course Materials

Materials will be distributed weekly. They will include a copy of the following Thursday's paper, along with journal articles or cases relevant to the paper and the discussion.

Writing Requirements

Students will be required to write a research paper (in addition to the weekly Analysis Paper). For an "A" paper, students will be required to write a detailed statement of the topic (including a statement of the thesis of the paper), a first draft, and a final paper. For a "B" paper, students need not submit a first draft. See the list of possible topics.

Submission Dates

• The weekly Analysis Paper is due the Thursday prior to its discussion.
• The thesis statement/outline is due February 11
• The first draft is due March 25
• The final paper is due May 14

There will be no extensions given on the final paper due date.

Grades

For "A" papers, the first draft will count for 20 percent of the grade; the final draft will count for 50 percent. For "B" papers, the final draft will count for 70 percent of the grade. The remainder of the grade will be based on participation and performance in the seminar, including the Analysis Papers.

Secretary for the Course

Ms. Alexandra Pietropinto (VH 427) will be the secretary for the course. All papers should be turned into her office and all materials should be picked up from her office.

Colloquium Topics

Week 1: Jan 14

The major issues:

• What is innovation?
• Does it mean the same thing for technological inventions and cultural inventions (viz. books, etc)?
• Why is innovation "good"?
• Description of the innovation Process

Incentive structures: what are the incentives for Innovation?

Basic tension between competition and appropriable rights: what are the arguments for giving innovators appropriable rights?

Week 2: Jan 21

Antitrust and innovation

• Is antitrust inconsistent with intellectual property law?
• What are the antitrust rules relevant to licensing?
• Is there such a thing as an "innovation market"?

Week 3: Jan. 29

The limits of the intellectual property law regime

• How do intellectual property laws restrict the freedom of intellectual property owners to license or deal with intellectual property rights?
• Non-intellectual property regimes that affect innovation.

Week 4: Feb 4

Refusals to license intellectual property

Why should we treat intellectual property differently than any other property?

Week 5: Feb 11

Using data

How do we assess the economic benefits of intellectual property?

Week 6: Feb 18

Networks and standards

• What is a "network"?
• How is it formed?
• How strong are network economies?
• Is lock-in more likely than leapfrogging?
• Are there any differences between standards and networks?
• What rights do the owners of networks (or standards setters) have to exclude others?
• What is the difference between the rights available to standards set by single firms and those set collaboratively?

Week 7: Feb 25

The economics of copyright

• Is there an economic case for copyright protection?
• Is infringement "theft"?
• How have the views expressed by Stephen Breyer, in The Uncertain Case for Copyright, held up?

Week 8: March 4

Sequential decision making

• How do antitrust and intellectual property take account of the effects of building on earlier (protected) work?
• Should patent claims be read more broadly or copyright infringement be more readily found?
• Should the term of protection be lengthened?
• Should potential innovators be permitted more freedom to collaborate prior to invention?

Patent pools and compulsory licensing

• When is collaboration, rather than exclusivity, necessary for innovation?
• If collaboration is necessary, what form should it take?
• Do antitrust rules favor full integration over partial forms of integration, such as patent pools, or research or production joint ventures?
• Should they?
• Do liability rules achieve the same result as compulsory licensing?

Week 9: Mar 11 (no seminar meeting)

Week 10: Mar 25

Non-U.S. perspectives

How can different legal structures affect the profitability of innovations?

Week 11: Apr 1

Transfer of technology

• Should legal regimes focus more on the incentives in distribution than the incentives for invention?
• Do distribution rights provide adequate incentives for capturing the rewards for innovation?
• If distribution rights are adequate, should we be less willing to grant patent protection, particularly in the area of basic research?
• Are there alternative incentive structures to copyright or patent laws, e.g., for pharmaceuticals or for basic research in universities or by the government?

Week 12: April 8

Reprise on networks (See Week 6)

Week 13: April 15

The Internet

• Does the internet undermine the validity of current theories of innovation?
• To what extent can present-day legal regimes function in the internet environment?

Week 14: April 22

The asserted importance of legal regimes

• What are the determinants of innovation?
• Can we be so certain that legal regimes protecting intellectual property are that critical?
• If we cannot be so certain, how can we insist on the adoption of intellectual property regimes throughout the world?
• Will the adoption of intellectual property rights around the world end up locking-in current comparative advantage?

Suggested Paper Topics

Broadly speaking, there are three ways to think about paper topics. The first is to consider structural issues related to how well the law promotes the optimum level of innovation. The second is to think about particular industries. The third overlaps with the first two: it is to examine a comparative or international issue.

A. Structural issues

• Joint ventures and mergers
            • Cooperative research
            • Innovation markets and merger law
            • Performance and photocopying rights societies
            • Development joint ventures
            • Joint action in the EC, Japan, etc.
            • Joint Venture Guidelines: potential for impact on innovation
• Compulsory licensing
            • Compulsory licensing as relief in antitrust cases
            • Decompilation of source code: comparison of US, EC, Japan rules
            • Predisclosure of innovations by dominant firms
            • Experimental use exception for patent law
            • Right to know laws and their effects on appropriability
            • Compulsory licensing in the EC
            • Licensing guidelines in Japan
• Rights to standards
• Standards setting agencies: does process matter?
• Standards setting agencies: The scope of the Noerr-Pennington doctrine and First Amendment defenses
• Establishing and managing the internet
• DAV and the private setting of standards
• Should Netscape fear Microsoft (or vice-versa)? An antitrust analysis

Alternative policy approaches

          • The National Cooperative Research Act
          • The use of antitrust guidelines as a regulatory tool in the US, Japan and/or the EC
          • The semiconductor chip act
          • The research university and the incentives for innovation

B. Industry issues

          • Biotechnology

          • Entertainment

          • The internet

          • Computers

          • Art

C. International and comparative issues

          • IP and International Trade

          • Comparative Law Aspects

          • The laws of other nations

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