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The U.S. Supreme Court’s decision regarding patent-eligible subject matter in Alice Corp. v. CLS Bank has been in effect for more than five years, and it has made a significant impact on inventions in the life science industry. Statistics have shown that patent applications and allowance rate decreased significantly after Alice due to legal uncertainties created by this decision. This work develops a causal empirical study (using difference-in-difference regressions) of Alice and carefully explores how this decision impacts patent examiners and patent applicants in bioinformatics. We deploy and analyze patent application data between 2012 and 2016 for all the U.S. Patent and Trademark Office (“PTO”) office actions in bioinformatics and manufacturing devices, a total of 0.14 million patent office actions and patentee responses. Patent applications in bioinformatics are defined as broad and narrow according to specific technology centers or art units and compared with the patent applications in manufacturing devices before and after Alice. We find that applicants in bioinformatics, regardless of the broad or narrow definitions, received more Sec. 101 rejections after Alice, and they are positively associated with Alice-based rejections. Alice-based rejections are not always positively associated with other types of statutory rejections (i.e., Sec. 102, Sec. 103, and Sec. 112 rejections). Moreover, applicants gradually filed fewer patent applications, compared to the time period before Alice, with the greatest reduction in patent applications occurring in June 2014, when the Alice decision was delivered by the Supreme Court. In addition, patentees received many more Sec. 101 rejections based on Alice, but these applicants also faced difficulties in overcoming these rejections, especially in the sub-areas of data processing and combinatorial chemistry technology in bioinformatics. Due to the high costs of patenting on bioinformatics imposed by Alice, this study suggests legislation by Congress is the best hope to bring more certainty to this area of patent law.

The trade secret literature does not thoroughly consider information asymmetries between companies and employees. This article visualizes the flows of technical information in and between companies and employees and categorized two types of information asymmetries in the information transactions. The information asymmetries cannot be effectively governed by contracts and trade secret law. Companies employ covenants not to compete (CNCs), non-disclosure agreements (NDAs), and trade secret protection to shift the legal risks borne by employees from the disclosure risks borne by the companies, both restraining and aggravating the information asymmetries. The contracts and the law cannot increase employee loyalty to eliminate the information asymmetries. The risk shifting is not only costly to the companies but also harms innovation by employees and society due to the inevitable information asymmetries. Moreover, courts are inconsistent in enforcing the contracts and trade secret law for promoting innovation and other policy reasons. This article revisits the literature that concerns the balance and the efficiency of the contracts and trade secret law for innovation. It argues that courts reward companies for training employees and investing in innovation by enforcing trade secrets and CNCs to supplement the ineffective NDAs used by companies. CNCs are less efficient for innovation than trade secret law. Thus, this article suggests that courts rely on a strong trade secret regime when distributing training and innovation rewards. The strong trade secret regime adopts the inevitable disclosure doctrine and allows a broad scope of trade secret protection, rather than enforces broad NDAs or CNCs, which are less efficient for innovation than trade secret law. At least, this regime should not impair employee loyalty.

Copyright protection from state offenders is onerous because of the imbalanced bargaining power between states and authors, which is increased by the U.S. Supreme Court decision in Allen v. Cooper. This decision clarifies that state sovereign immunity is not abrogated by the Copyright Remedy Clarification Act of 1990 (“CRCA”). It secures states’ constitutional rights, the public interest, and the efficiency of copyright infringement litigations against states. However, a paradox of this decision is that it may harm innovation incentives or spirits of creativity due to the increased imbalanced bargaining power to prevent authors from being repaired for their economic or non-economic losses. This Article reviews the law and psychology literature and proposes to adopt compelled and voluntary state “apologies” in the copyright regime. It suggests that the “apologies” do not conflict with Allen’s benefits but can rebuild the reputation of authors and repair relationships between the authority and authors to promote or sustain their innovation incentives.

China has established a dynamic legal system by using guiding cases to improve adjudicative consistency. The guiding cases are de facto binding as “common-law precedents” and the only binding cases in China. The Supreme People’s Court (SPC) selects, compiles, and publishes guiding cases. In China’s dynamic legal system, the U.S. notably influences the intellectual property (IP) legal mechanism and the legal rationales for adjudicating IP disputes. Some amendments to the IP statutes of China are in response to actions and criticisms by developed countries, especially the U.S. The IP guiding cases reflect the voluntary development of the IP regime and the enforcement of the IP statutes in China. In the U.S., IP laws are mainly considered as private law, but they do involve some public law characteristics, as shown by the intervention of legislators and the development of statutory interpretation by the courts. These public law characteristics do not transform IP laws into public law, but they evoke the concept of New Private Law in modern IP laws. This study reviews all twenty-two IP guiding cases (i.e., patent, copyright, trademark, anti-unfair competition, anti-monopoly) in China and compares them with corresponding judicial precedents in the U.S. I argue that Chinese IP guiding cases are not conventional private or public law, but instead can be explained under the theories of New Private Law. The IP guiding cases follow public policies to be part of governance and, as a result, show their influence on policymakers and legislators. Consistent with the concerns of U.S. IP holders, these guiding cases show that Chinese courts are instructed to be conservative in awarding both damages and injunctions. The courts function as a gatekeeper and consider IP quality to prevent over-rewarding IP holders either through the judicial system itself or the market when government agencies liberally or incautiously granted the IP rights. For trademark and unfair competition cases, the courts are instructed to give public apologies for substituting economic damages to IP holders. Moreover, the IP guiding cases suggest that the SPC and Chinese judges are inclined towards a utilitarian and realistic/pragmatic judicial philosophy rather than a formalistic approach in their statutory interpretation.

The main argument that supports copyright extension in the United States and elsewhere has been that bad things happen once copyrighted works enter the public domain, where, more copyright extension means more distribution of copyright material. However, Paul Heald’s empirical legal research suggests that extending copyrights means fewer books available on the shelves. What seems to be going on is that publishers stop printing books that they don’t sell, and once copyrights enter the public domain, they are more likely published. This paper extends the discussion by analyzing the effects of copyright term extension in works written by Literature Nobel Prize Winners in the United States. Works written by literature Nobel Prize laureates would provide a higher standard to the findings that suggest that copyright extension has disappeared works from the printing at a certain point.

There is little empirical evidence showing how innovation by small and medium enterprises (SMEs) is impacted by tax policies, especially SMEs from developing countries. We study the economic rationales for R&D tax incentives and explore how targeted policies of corporate tax credits (firm-specific) and value-added tax credits (product-specific) in China impact the domestic SMEs’ R&D investment and R&D output. The “finance gap” theory can explain the R&D increase by SMEs induced by corporate tax credits but cannot explain the effectiveness or the ineffectiveness of value-added tax credits on R&D incentives. We find a stringent corporate tax policy with narrowly tailored R&D thresholds for tax credits can positively incentivize R&D and patent applications by SMEs. We also find that a value-added tax policy without any R&D thresholds is overinclusive in terms of its impact on the subsidized SMEs’ innovation. Value-added tax credits cannot induce R&D when they do not confer subsidies or a competitive advantage on SMEs. However, we find that the value-added tax policy creates a spillover effect on R&D by SMEs in other technology sectors who may choose to qualify for these value-added tax credits.