January 2012

By Christina Bohannan and Herbert Hovenkamp, law professors at The University of Iowa College of Law

Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of high technology markets. Interconnection requirements, technological compatibility requirements, standard setting, and the relationship between durable products and aftermarket parts and supplies all involve interconnection, or “tying.” But views about the practice tend toward two extremes. Some see tying as inherently anticompetitive, while others view it as unexceptionally benign. In fact, bundling products or technologies is essential in high technology markets and most of it is socially beneficial, but some possibilities of abuse nevertheless remain. 

Identifying good substantive legal rules for facilitating innovation is often very difficult. Two generations ago antitrust law addressed problems of complexity by shifting the focus to harm. The courts reasoned that they could often avoid unmanageable substantive doctrine by considering whether the plaintiff had suffered the appropriate kind of injury. Plaintiffs who are injured by more rather than less competition should be denied a remedy. In the case of patent and copyright law, the appropriate question is whether an infringer’s conduct served to undermine the right holder’s incentive to innovate, with incentives measured from before the innovation occurred. Some IP infringements do no harm to the incentive to innovate; others actually make the right more rather than less valuable. In these situations relief should be denied without inquiry into the merits of the infringement case.

Patent and copyright law are both in crisis today – major problems include overissuance, overly broad and ambiguously defined protections, and rules that permit both patentees and copyright holders to make broad claims on unforeseen innovations that lie in the future. The result has been that many patents are valueless, while others have very considerable value precisely because they enclose ideas or technologies that rightfully belong in the public domain. Patent law could be greatly improved if inventions were tied to real, nonobvious technology actually in the patentee’s possession at the time its application was filed, and if patentees were obliged to give comprehensible and timely notice of their inventions. Copyright law would be greatly improved by an aggressive theory of harm that reduces the scope of the derivative works right and increases the scope of fair use. In Eldred the Supreme Court suggested that the First Amendment should not be an important copyright infringement defense because the Constitution’s IP clause and the initial copyright act were passed “close in time,” leading to an inference that Congress must have considered these concerns. But the original copyright act bears little resemblance to the expansive coverage granted by the current Act, passed almost two centuries later.

by Jeremy Leaming

Hardly shocking is the report from the Brookings Institution’s Russell Wheeler that shows vacancies on the federal bench have jumped during President Obama’s tenure.

As Senate Judiciary Chairman Patrick Leahy has noted time and again, obstruction in the Senate of judicial selections has intensified. (At the end of December, as Congress was leaving town, Leahy said in a press statement that for the “last three years, dozens of judicial nominations have been delayed in the Senate. In fact, nearly 20 judicial nominations pending and stalled before the Senate should be confirmed when the body resumes session in January. This would lower the current number of vacancies by nearly 25 percent. The Senate has a constitutional responsibility to provide its advice and consent in the confirmation of federal judges. Only then can the judiciary fulfill its own constitutional role.”)

As it stands now, according to JudicialNominations.org, there are 85 vacancies on the federal bench, and caseloads are growing.

Wheeler’s report, however, is not focused on assigning blame. Instead it provides a detailed examination of the Obama administration’s efforts to shape the federal bench, in part, by drawing comparisons with Obama’s predecessors at similar times in their presidencies.

For example, compared with Presidents Bill Clinton and George W. Bush, Obama has made fewer nominations to the district court. But as The Wall Street Journal Law Blog’s Joe Palazzolo notes, “Obama is also dealing with a surge of judges taking senior status (92 in the first three years, compared to 72 and 70 in the same periods in the administrations of Clinton and Bush) and the Senate has confirmed a lower percentage of Obama’s nominees, according to Wheeler.”

Moreover, the time for attaining confirmation has by “almost all measures … gotten progressively longer – by average days or median days,” Wheeler reports. The president’s nominees, he shows, have gotten hearings before the Senate Judiciary Committee in a quicker fashion, but “have waited, longer, overall for confirmation.”

One bright spot in the judicial nominations process centers on the diversity of nominees. Wheeler, like others, notes that Obama has “appointed record proportions of non-white males.”

He continues:

All of Dwight Eisenhower’s district and circuit appointees were white males. For the Kennedy Johnson administration, the figure fell to 93 per cent, for Carter to 66 percent, up to 86 percent under Reagan, 53 percent under Clinton, 66 percent under Bush2, and 38 percent under Obama.

Appointments of Asian-Americans have been especially noticeable. Of the 24 appointments of Asian Americans to federal district and circuit judgeships in total, Obama has made eight – and three Asian-American nominees are awaiting Senate action.

An attempt, however, at providing much needed diversity to the bench remains ensnared in Senate obstructionism.

Andrew Cohen, of the Atlantic, has written, on numerous occasions, about the nomination of Arvo Mikkanen to a federal judgeship in Oklahoma. Mikkanen, an American Indian, was nominated to the seat well over a year ago, but his nomination has been stalled by Sen. Tom Coburn, who has given no indication as to why he is blocking the nomination. He’s only said, as Cohen notes, that he knows plenty about the nominee.