The Use of USPTO “Continuation” Applications in the Patenting of Software: Implications for Free and Open Source*

This paper examines the role played by “continuations” (procedural revisions of patent applications) within software patenting and the implications that the use by patentees of continuations has for free and open‐source software design. Our research analyzes data on continuations in software patenting 1987–99, providing information on the effects of changes made to the U.S. patent laws in 1995 intended to curb “submarine patenting.” Our analysis of all U.S. patents issued 1987–99 shows that the use of continuations grew steadily in overall U.S. patenting through 1995, with particularly rapid growth in continuations in software patenting. Sharp reversals in these growth rates after 1995 suggest that changes in the U.S. patent law were effective. We analyze the role of continuation patents in creating opportunities for patentees to engage in strategic “hold‐up” of software adopters and follow‐on software innovators, and extend the analysis to open‐source software.     

Innovation in the U.S. Service Sector

This paper contributes to ard a better understanding of innovation in the service sector by focusing on the disparate nature of R&D in the U.S. service sector as learned through case studies of the U.S. telecommunications, financial services, systems integration services, and research and development testing services industries. Based on this understanding of the nature and scope of R&D therein, a new policy-oriented model of innovation specific to the service sector is posited. Also, policy recommendations are offered with regard to the public sector’s collection and interpretation of R&D data related to the service sector.      

Government-owned inventions; availability for licensing. National Institutes of Health, Public Health Service, DHHS. Notice

The inventions listed below are owned by agencies of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.     

Government-owned inventions; availability for licensing. National Institutes of Health, Public Health Service, DHHS. Notice

The inventions listed below are owned by agencies of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.     

Government-owned inventions; availability for licensing. National Institutes of Health, Public Health Service, DHHS. Notice

The inventions listed below are owned by agencies of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.     

What motivates the engineers to patent? A study at the Chinese R&D laboratories of a European MNC

Corporate R&D engineers, being usually the initiators of a patent, are important contributors to the patenting performance of their employers. Hence, patenting motives of R&D engineers encompass an interesting and promising research field. However, the literature on patenting motivation of the engineers in the corporate context is scarce. We apply self-determination theory on human motivation to investigate patenting motives of a sample of local R&D engineers in China employed by a European-based multi-national corporation. Factor analysis reveals four groups of motives: “reward and recognition”, “reputation and promotion”, “making a contribution” and “interest and sense of achievement”. The results of multiple hierarchical regression show the influence of working climate on “making a contribution” and “interest and sense of achievement” motivation factors. Implications for patent management are discussed.

     

LabCorp v. Metabolite Laboratories: The Supreme Court listens, but declines to speak.

In the United States, a longstanding legal rule exists against patenting natural phenomena. The Supreme Court recently had an opportunity to help define the boundaries and clarify the implications of this "natural phenomenon doctrine" in Laboratory Corporation of America v. Metabolite Labs., dismissed as improvidently granted. This article argues that the natural phenomenon doctrine renders both the patent claim at issue in LabCorp, and the patents that directly or indirectly claim biological correlations between genotypes and medical phenotypes, invalid or unenforceable under U.S. patent law.     

Transforming the Post-Soviet Research Systems Through Incubating Technological Entrepreneurship

For many years the Soviet Union and the Eastern block countries (member countries of the former Warsaw pact) had been considered as the main military competitors of the western countries buttressed in their struggle against the West by their economic and scientific resources. The Warsaw pact countries had high levels of R&D investments, a large number of researchers and engineers, and diverse research facilities. On the other hand, output indicators (patent applications, number of papers, scientific citations, etc.), and especially the rates of technological innovation were not so impressive. This paper analyzes the sources of these differences with special attention to the functions played by science and technology (S&T) programs in the formerly communist societies of Europe and Russia. The dynamics of changes in the R&D potential in these countries are considered along with ways and possible scenarios of convergence towards the national systems of innovation of developed western economies. Special emphasis is assigned to the constructive role that technology transfer and commercialization processes along with the use of a network of virtual incubators and the promotion of technological entrepreneurship, can play in fostering a socio-economic renaissance in Eastern Europe and Russia.     

On Understanding the Increase in U.S. Patent Litigation

Patent litigation in the United States has increased dramaticallyin the last 20 years. Understanding this increase, and the concomitantincrease in patent grants, can help us to better understandthe sources of technological innovation and productivity. Theapproach described here provides a means to simultaneously examineboth the "friendly court" hypothesis and the hypothesis of anincrease in research productivity associated with the informationage. The results support the notion that both hypothesized factors,changes in court outcomes and increased research productivityand the associated increase in patenting activity, have playeda role in the growth of patent litigation.     

Chinese university patents: quantity,quality, and the role of subsidy programs

Chinese university patenting has gained importance in recent years. Using a comprehensive dataset of university patents by 155 leading Chinese universities from 1991 to 2009, our study pursues two objectives: First, we analyze the quantity and quality of patents filed by leading Chinese universities. Second, we analyze the role of subsidy programs with regard to university patenting in China. With regard to the first objective, our results show that university patents witnessed rapid growth in terms of quantity while patent quality did not increase to a similar degree. Regarding the second objective, we find that a subsidy program to promote research excellence at selected universities is a significant driver of patent quantity and quality. In contrast, a subsidy program that decreases the costs of patent applications seems to enhance patent quantity but not patent quality. We conclude that innovation policies which aim to stimulate patents of higher quality should focus primarily on increasing university R&D, and to a lesser extent on decreasing the costs of university patenting.     

The London Agreement and the cost of patenting in Europe

This paper analyses the consequences for the European patent system of the recently ratified London Agreement, which aims to reduce the translation requirements for patent validation procedures in 15 out of 34 national patent offices. The simulations suggest that the cost of patenting has been reduced by 20–30% since the enforcement of the LA. With an average translation cost saving of €3,600 per patent, the total savings for the business sector amount to about €220 millions. The fee elasticity of patents being about −0.4, one may expect an increase in patent filings of 8–12%. Despite the translation cost savings, the relative cost of a European patent validated in six (thirteen) countries is still at least five (seven) times higher than in the United States.     

The R&D performance of the South African manufacturing sector, 1970–1993

In this article we undertake a detailed exploration of the research and development activities in one particular middle-income country. We explore what the data from R&D surveys can tell us about the levels, the determinants and the effectiveness of R&D in the manufacturing sector. We point to some of the broader factors that may have influenced South Africa’s drive to improve the technological capacity of its manufacturing sector, but we mostly focus on those issues associated directly with R&D. We show that the degree of interaction between the different domains of R&D activity, business, government and the tertiary sector has been weak, and that the possibility of positive spill-overs between these domains has not been fully exploited. In addition, little or no policy intervention designed to stimulate R&D activity by industry has been deployed in South Africa. We find that South African R&D activity has mainly been reactive in character and suggest that this lies at the heart of South Africa’s mixed R&D performance in relation to other developing countries.     

What Patent Data Reveal about Universities: The Case of Belgium

In recent years, there has been a surge in patenting by Belgian universities. It appears that this increase can be attributed to growth of biotechnology, where there is a greater propensity to patent, to a desire on the part of universities to enhance commercialization through technology transfer offices (TTOs), and to effective collaboration between universities and government-sponsored research centers. Our qualitative analysis reveals that patent statistics could be a misleading indicator of an individual university's technological productivity, since many inventions are developed at universities, yet applied by other institutions.     

专利价值之谜及其理论求解

在当今专利制度中,尽管多数专利的价值往往少于专利申请和维持的费用,但专利申请案和授权量却急剧增长。这被称之为专利价值之谜,其理论求解应从专利获取的目的出发。竞争者之所以通过申请大量专利的方式形成专利组合,是因为它既是竞争者的防卫之盾,也是其进攻之矛。非竞争者所拥有的专利组合备受人们指责;但事实上,非实施企业拥有的专利质量大都可靠。此外,大量专利的形成是专利制度为鼓励专利竞赛有意而为的结果。因为由大量专利结合而成的专利组合能够区分市场上真正的创新者和模仿者,从而保障创新者的竞争优势。我国应该采取合理的措施鼓励我国的创新企业形成自己的专利组合。     

Exploring the Patent Explosion

This paper looks more closely at the sources of patent growth in the United States since 1984. It confirms that the increase is largely due to U.S. patenters, with an earlier surge in Asia, and some increase in Europe. Growth has taken place in all technologies, but not in all industries, being concentrated in the electrical, electronics, computing, and scientific instruments industries. It then examines whether these patents are valued by the market. We know from survey evidence that patents in these industries are not usually considered important for appropriability, but are sometimes considered necessary to secure financing for entering the industry. I compare the market value of patents held by entrant firms to those held by incumbents (controlling for R&D). Using data on publicly traded firms 1980--1989, I find that in industries based on electrical and mechanical technologies the market value of entrants' patents is positive in the post-1984 period (after the patenting surge), but not before, when patents were relatively unimportant in these industries. Also, the value of patent rights in complex product industries (where each product relies on many patents held by a number of other firms) is much higher for entrants than incumbents in the post-1984 period. For discrete product industries (where each product relies on only a few patents, and where the importance of patents for appropriability has traditionally been higher), there is no difference between incumbents and entrants.     

Organizational Structure as a Determinant of Academic Patent and Licensing Behavior: An Exploratory Study of Duke, Johns Hopkins, and Pennsylvania State Universities

This paper examines the influences of university organizational structure on technology transfer performance. The analysis treats the organizational structure of the technology-transfer office as an independent variable that accounts, in part, for measured differences in inter-institutional patenting, licensing, and sponsored research activities. We derive and investigate three hypotheses that link attributes of organizational form – information processing capacity, coordination capability and incentive alignment – to technology transfer outcomes. A detailed analysis of three major research universities – Johns Hopkins University, Pennsylvania State University, and Duke University – provides evidence of the existence of alternative organizational structures. The data also suggest that these organizational capabilities result in differences in technology transfer activity.     

Trends in Academic Research Spending, Alliances, and Commercialization

Widespread changes underway in the national R&D landscape are impacting how universities fund, conduct, and disseminate their own research efforts. The key components of these trends are revealed through a variety of indicators, including on financial resources, publishing and patenting metrics, and research partnerships. Many of the changes appear to be cost-driven. Particularly as funding increases from Government have slowed and expectations for cost-sharing increased during the past decade, universities increasingly have come to rely on nonfederal sources, notably industry and institutional self-funding. The shift in funding sources has impacted all major fields of study. As part of this system-wide transformation, universities have noticeably increased their collaborations with nonacademic researchers as evidenced by trends in publication data and information on the formation of centers, consortia, and cooperative agreements. Concurrently, and not coincidentally, the transfer of universities' research output also is expanding. Such transfers are increasing both indirectly (as indicated from patenting citation data) and directly (as documented by universities' own patenting/licensing commercialization endeavors). On all accounts are we unlikely to have yet reached the peak of such activities.     

Greenberg v. Miami Children 's Hospital: unjust enrichment and the patenting of human genetic material

Individuals and societal groups are questioning the practice of patenting human genetic material in the context of medical research and health care, where diverse ethical, social, and political objections are being raised by critics. A recent case provides a broad legal theory, the common law cause of action, unjust enrichment, and a precedent for challenging the commercialization and patenting of human genetic material.