Our Fall 2022 Issue—Volume 12, Issue 1—focuses on interdisciplinarity in understanding the development and future of intellectual property law.
First, Professor S. Sean Tu and Charles Duan present a study of patent litigation of pharmaceutical patents, modeling their case study after the Amarin v. Hikma string of litigation. Their empirical analysis of both parties’ patent portfolios reveals a broader pattern of how pharmaceutical companies have adopted novel strategies in developing so-called “patent thickets,” increasingly resulting in delayed generic drug entry into the market. The authors argue that brand pharmaceutical companies’ exploitation of the complex regulatory frameworks of the FDA and the PTO unjustly extends patent monopoly rights. An induced infringement strategy based on patent thickets stymie generic competition and lead to increased costs for American patients and the federal government. The authors ultimately argue that the Supreme Court of the United States should grant certiorari to GlaxoSmithKline v. Teva to correct the confusion created by the Federal Circuit, and that the PTO and FDA should create rules to re-balance the Hatch-Waxman Act to serve its initial purpose of promoting pharmaceutical innovation and lowering drug prices.
Second, Professor Andrew P. Morriss and Professor Roger R. Meiners offer a Coasian perspective on how universities incentivize research among groups of researchers whose aims differ from those of a traditional for-profit firm. A data-driven analysis of patenting activities reveals that university patenting is largely the result of activity by a small subset of U.S. universities, contrary to the Bayh-Dole Act’s promise that it would produce a massive technology transfer from universities to the marketplace. The authors conclude that the distinctive nature of research in not-for-profit universities in relation to research conducted in a for-profit context has resulted in inventions’ moving from the university to the market via licensing agreements to third parties that have a comparative advantage in assessing the risk and market value of research output.
Third, Dr. Tristan Radtke compares the requirements for influencer marketing in the U.S. and Germany with a particular focus on the disclosure of commercial intent and material connections to sponsors. The article demonstrates that while in the U.S. and Germany similar rules apply, Germany employs a more complex regulatory scheme in scenarios where influencers either promote merely themselves, with the goal of increasing their number of followers, or products without receiving payment. The author compares both approaches and discusses their advantages and disadvantages.
Finally, Molly Marias offers a note arguing for the creation of a non-fungible tokens (“NFTs”) licensing scheme modelled from the Creative Commons paradigm. Neither traditional copyright nor property law conforms to NFT creator or purchaser objectives, resulting in conflicting expectations that hamper the efficiency of NFT sales. These licenses would define, and readily convey, the NFT creator’s and purchaser’s legal rights in and value of the NFT, and would allow for a more informed and efficient negotiation process. The author finally argues that increased transparency would lower NFT transaction costs by remedying the negotiating parties’ information asymmetries, augmenting NFT sales and viability.
You may view and download a PDF of the complete issue here.
Jacob Golan, Ph.D.
NYU Journal of Intellectual Property & Entertainment Law