Course Description

This seminar, at Boston University Law School, will explore the economics of intellectual property law. The readings for the seminar will consist largely of Cass and Hylton, Laws of Creation (2013), Bessen and Meurer, Patent Failure (2008), and several cases and articles. The seminar will emphasize understanding the policy justifications for the major doctrines in intellectual property. The topics studied will include patent law, copyright law, trademark law, trade secret law, and the intersection of antitrust and intellectual property.

The two major books, Cass & Hylton and Bessen & Meurer, offer different, almost diametrically opposed, perspectives on intellectual property law.  Cass & Hylton emphasizes the major legal doctrines and their economic justifications.  Bessen & Meurer emphasizes the actual operational effects of the intellectual property laws.  While Cass & Hylton is heavy on legal doctrine and basic economic reasoning, Bessen & Meurer focuses on empirical studies of the intellectual property system and its effects.  I hope that through these works students will at least develop an intuitive feel for the economics of intellectual property, and an understanding of how to critically evaluate empirical research on intellectual property.

Without making a conscious effort to select on a parochial basis, it happens that the most important readings for this seminar are from Boston University authors (Cass & Hylton, Bessen & Meurer, Gordon on fair use).  That is perhaps a coincidence, that Boston University authors have produced so much work on the economics of intellectual property law that I could teach an entire course based mostly on their work. However, I have made no attempt to exclude authors from other universities, and several articles from non-BU authors are included in the reading list. And the reading list will certainly change in the future.    

Intellectual Property has become such an important area of the law in recent years that it is now, for practical purposes, a mandatory course subject in law school.  With the importance of the topic to the modern economy, the attention given to intellectual property disputes and to scholarship in the field has increased considerably.  However, much of modern intellectual property scholarship could be improved substantially with the aid of a more sophisticated economic treatment.  One aim of this seminar is to train students to identify the most common flaws in economic reasoning in the intellectual property literature.

*For students intending to satisfy the cert requirement: This is an ideal course for satisfying the cert requirement.  I have arranged for several weeks at the end of the term for paper presentations and revisions.  If you intend to use the paper for this seminar to satisfy the cert requirement, you are strongly urged to submit a paper draft with either your first or second presentation.  If you do not submit a paper draft by the second presentation, I reserve the right to refuse to serve as cert supervisor for the paper.  Please remember to include the date of your final paper submission on the title page.

Course Objectives:

Upon successful completion of this course, students should be able to:

• display knowledge of basic economic concepts related to intellectual property;

• deploy legal reasoning at the intermediate/advanced level;

• identify the rationale for substantive intellectual property law;

• distinguish policy and legal issues presented by intellectual property law in a given factual context.

Students will be assessed on these learning objectives through:

• in-class discussion with written comments, and a final paper.