literature

• Ghosh, Shubha , Patents and the Regulatory State: Rethinking the Patent Bargain Metaphor after Eldred (August 9, 2004). Available at SSRN: http://ssrn.com/abstract=574141 or doi:10.2139/ssrn.574141

• Mueller, Nicole Sigrid, Should Research Tools Be Patentable? Troubles & Chances of Patenting Research Tools in Biotechnology and Nanotechnology (August 31, 2008). Available at SSRN: http://ssrn.com/abstract=1265731

• Mark A. Lemley, Ex Ante versus Ex Post Justifica tions for Intellectual Property, 71 U. CHIC. L. REV. 129, 149 (2004).

• Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV. 1576, 1648-1652 (2004).

• Jay P. Kesan & Mark Banik, Patents as Incomplete Contracts: Aligning Incentives for R&d Investment with Incentives to Disclose Prior Art, 2 WASH. U. J. L. & POL'Y 23 (2000).

• Anita L. Allen, Social Contract Theory in American Case Law, 51. FLA. L. REV. 1, 33-35 (1999).

• Murray, Fiona. Stern, Scott. June 2005. Do Formal Intellectual Property Rights Hinder the Free Flow of Scientific Knowledge? An Empirical Test of the Anti-Commons Hypothesis. Prepared for NBER Academic Science and Entrepreneurship Conference. Working Paper No. 11465. http://imio.haas.berkeley.edu/WilliamsonSeminar/stern111705.pdf

So what I've started doing is collecting the resources I've been using in Google books into my library. At the moment it only includes the Carpmael Law Reports - but these have reports of some hard to find cases:

http://books.google.com/books?uid=1933395611543063473

The only thing that is missing (in my humble opinion) are the early volumes of the Reports of Patent Case (RPC). C'mon Google (or someone else - get it on!

An economic evaluation of free speech must be met with mixed reviews. There is much that a proper view of economics can bring to this field of constitutional law. Economics can be useful when it is viewed as a science which examines the decisionmaking process, the study of optimization behavious subject to constraints. Economics cannot be helpful if it is viewed as a precise tool that can mechanically and independently determine the outcomes of complex problems. As a method, economics can lend valuable insight to the technical process of constitutional decisionmaking. In this capacity it can be used to assist in the framing of issues and in isolating the appropriate factors for judicial consideration. Economics is not helpful, however, in the inherently subjective process of weighing and quantifying competing concerns. It is wrong not to recognize this limitation, and it is dangerous to assume that difficult, value-laden decision areas in areas such as free speech can be decided mechanically by appealing to an economic formula. Difficult constitutional choices cannot be avoided by viewing first amendment issues through the lens of an economic perspective.

Computer programming languages are interesting in their own right, as they represent humanity's attempts to communicate our ideas to our machines.

• http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_indialt.htm
  

• http://www.law.berkeley.edu/journals/btlj/articles/vol4/Wrenn/HTML/text.html

1. Applications per year for patents, trade marks, designs, plant breeder rights
2. Patents granted in Australia to Australians (9%) and the top 5 tech groups of these (IT ranked in the Top 5).
   
3. Similar stats for Innovation patents.
4. Patents granted to Australians by the USPTO. Australia ranked 12th in 2005, with an increase of 30% in the number of patent applications over the previous year. Again, IT was in the top 5 technology groups.
5. The number of patents granted to Australians by the EPO was up only 1.7%, with Australia ranking 17th in non-EU countries for patent applications. IT was not one of the top 5 groups, unsurprisingly ;)

• Use BibDesk, hence BibTeX formatting (\cite{}, BibTeX db)
• Can access footnote numbers for cross-referencing purposes.
• Have a 'database' which maps types (journal, book, etc) to first citation and subsequent citation formats like this:
  

  {'case':'<i>%s</i>%s %s %s %s' % (title, year, volume, reporter, page), }

'above n%s' % xref

1. About PyUNO (or some such thing) esp on OSX
2. Whether there is already code for handling BibTeX databases
   

• http://www.marxists.org/archive/marx/works/1867-c1/ch32.htm

• "Private property, as the antithesis to social, collective property, exists only where the means of labor and the external conditions of labor belong to private individuals.... The private property of the laborer in his means of production is the foundation of petty industry, whether agricultural, manufacturing, or both; petty industry, again, is an essential condition for the development of social production and of the free individuality of the laborer himself. Of course, this petty mode of production exists also under slavery, serfdom, and other states of dependence. But it flourishes, it lets loose its whole energy, it attains its adequate classical form, only where the laborer is the private owner of his own means of labor set in action by himself: the peasant of the land which he cultivates, the artisan of the tool which he handles as a virtuoso. This mode of production pre-supposes parcelling of the soil and scattering of the other means of production. As it excludes the concentration of these means of production, so also it excludes co-operation, division of labor within each separate process of production, the control over, and the productive application of the forces of Nature by society, and the free development of the social productive powers."
• "[T]he transformation of the individualized and scattered means of production into socially concentrated ones, of the pigmy property of the many into the huge property of the few, the expropriation of the great mass of the people from the soil, from the means of subsistence, and from the means of labor, this fearful and painful expropriation of the mass of the people forms the prelude to the history of capital".
• "Along with the constantly diminishing number of the magnates of capital, who usurp and monopolize all advantages of this process of transformation, grows the mass of misery, oppression, slavery, degradation, exploitation; but with this too grows the revolt of the working-class, a class always increasing in numbers, and disciplined, united, organized by the very mechanism of the process of capitalist production itself."

Essentially, all of the human effort is mental, and the end result may be completely intangible. In this sense, software is very close to pure thought, which has long been regarded as something that no one can own an exclusive right [over].

Captures my perspective on it fairly well.

• Rasch, Mark D, "Can you keep a secret?" IP Law and Business, May 2005, pp24-27.
• Kenny, John "Defining the scope of US patents" Managing IP, Issue 147, March 2005.
• Moens, A "The use of copyright and patents for software protection" (1997) 34 Computers & Law 1.
• Wood C, "Patents in computer software: commercially useful is not enough" (1998) 9(3) AIPJ 134.
• "Patentability of Computer Software and Online Business Methods" (2004) 6(9) INTLB 105.
• Pila, Justine "Inherent Patentability in Anglo-Australian Law: A History" (2003) 14(3) AIPJ 109.
• Genentech v Wellcome Foundation (1988) 15 IPR 423; [1989] RPC 147 (on discovery/invention distinction)
• Brennan DJ "An Essay on the Eligibility of Business Methods for Australian Patent Protection" (2003) 13(1) JLIS
  

A PhD thesis by Janet Hope which has been lent to me by Di for the week.

Some references:

• Y. Benkler, "Coase's Penguin, or, Linux and The Nature of The Firm" Yale Law Journal 112(369)
• Y. Benkler, "'Sharing Nicely': On shareable goods and the emergence of sharing as a modality of economic production" Yale Law Journal 114(273)
• A. Bonaccorsi & C. Rossi (2003) "Why open source software can succeed" Research Policy (32(7):1243-1258
• Commission on Intellectual Property Rights (2002) Integrating Intellectual Property Rights and Development Policy November 2002 (2nd edition)
• K Dau-Schmidt (1997) "Law and Society & Law and Economics: Common Ground, Irreconcilable Differences, New Directions: Economics and Sociology: The Prospects for an Interdisciplinary Discourse on Law" Wisconsin Law Review 1997:389-420
• P. Drahos (1996) A Philosophy of Intellectual Property Dartmouth Series in Applied Legal Philosophy.
• W. Eamon "From the Secrets of Nature to Public Knowledge: the Origins of the Concept of Openness in Science" Minerva XXIII(3):321-347
• R. Eisenberg (1987) "Patents and the Progress of Science: Exclusive Rights and Experimental Use" University of Chicago Law Review 56:1017
• R.C. Dreyfuss, D. Zimmerman & H. First (eds) Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society , Oxford University Press, Oxford
• J.T. Ellis, (2000) "Distortion of patent economics by litigation costs". In Proceedings of the 1999 Summit Conference on Intellectual Property, University of Washington, Seattle CASRIP Symposium Publication Series Number 5 http://www.law.washington.edu/casrip/Symposium/Number5/pub5atcl3.pdf"
• H. Etzkowitz, (1989) "Entrepreneurial science in the academy: a case of the transformation of norms" Social Problems 36(1):14-29
• N. Franke & M. Schreier (2002) "Entrepreneurial Opportunities with Toolkits for User Innovation and Design" The International Journal on Media Management 4(4):225-235
• N. Franke & S. Shah(2002) "How Communities Support Innovative Activities: An Exploration of Assistance and Sharing Among End-Users" Sloan Working Paper #4164, January 2002.
• N Franke & E. von Hippel "Satisfying heterogeneous needs via innovation toolkits: the case of Apache security software" Research Policy 32:1199-1215
• R.P. Gabriel & R. Goldman (2004) Open source: beyond the fairytales Free/Open Source Research Community online papers collection. http://opensource.mit.edu/papers/gabrielgoldman.pdf
• M. Galanter (1974) "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change" Law and Society Review 9:950-997.
• N. Gallini & S. Scotchmer (2002) "Intellectual Property: When is it the best incentive system?" In J. Lerner & S. Stern (eds) Innovation Policy and the Economy, vol. 2 pp51-78. MIT Press, Boston.
• M. Granovetter (1973) "The Strength of Weak Ties" American Journal of Sociology 78:1360-80.
• G. Hardin (1968) "Tragedy of the Commons" Science 162:1243-1248
• D. Harhoff, et al. (2002) "Profiting from voluntary information spillovers: How users benefit from freely revealing their innovations" http://userinnovation.mit.edu/papers/3.pdf
• F. Hecker (2000) "Setting Up Shop: The Business of Open Source Software"
• M. A. Heller (1998) "The Tragedy of the Anticommons: Property in the Transition from Marx to Markets" Harvard Law Review 111:621
• C. Herstatt & E. von Hippel (1992) "From experience: developing new product concepts via the lead user method: a case study in a 'low-tech' field" Journal of Product Innovation Management 1992(9)213-221.
• G. Hertel et al (2003) "Motivation of software developers in open source projects: an internet-based survey of contributors to the Linux kernel" Research Policy 32(7):1159
• S. Hilgartner & S. I. Brandt-Rauf (1994) "Data Access, Ownership, and Control: Toward Empirical Studies of Access Practices" Knowledge: Creation, Diffusion, Utilisation 15(4):355-372
• L. A. Hollar Legal Protection of Digital Information BNA Books, http://www.bna.com/bnabooks
• P Hrebejk & T. Bordreau (2001) "The coming 'open monopoly' in software' http://news.com.com/The+coming+open+monopoly+in+software/2010-1071_3-281588.html
• L.B. Jeppensen (2002) "The Implications of User Toolkits for Innovation"
• L.B. Jeppensen &  M.J. Molin (2003) "Consumers as co-developers: learning and innovation outside the firm"
• G. Keizer (2004) "Linux to ring up $35B by 2008" TechWeb News Dec 16 http://www.informationweek.com/story/showArticle.jhtml?articleID=55800672
• C.A. Kenwood (2001)  A business case study of open source software Report on OSS for the US DoD, MP 0 1B 0000048, The Mitre Corporation
• E. E. Kim "An Introduction to Open Source Communities" Blue Oxen Associates http://www.blueoxen.org/research/00007/BOA-00007.pdf
• E.W. Kitch (1977) "The Nature and Function of the Patent System" Journal of Law and Economics 20:265-290
• T.S. Kuhn (1970) The Structure of Scientific Revolutions University of Chicago Press, Chicago.
• K. Lakhani & E von Hippel (2002) "How Open Source Software Works: 'Free' User to User Assistance" Research Policy 1451:1-21
• J.O. Lanjouw & M. Schankerman (2001) "Characteristics of patent litigation: a window on competition" RAND Journal of Economics 32(1) (Spring): 129-151
• L. Laudan (1982) "Two puzzles about Science: reflections on some crises in the philosophy and sociology of science" History of Sciecnce 20:253-268
• J Lerner (2000) "Patent policy innovations: a clinical examination" Symposium: 'Taking Stock: The Law and Economics of Intellectual Property Rights'Vanderbilt Law Review 53(6):1841-1856
• R.C. Levin (1986) "A new look at the patent system" American Economic Review 76(2):200
• S. Levy Hackers: Heroes of the computer revolution, Anchor/Doubleday, New York
• C. Long (2000) "Proprietary rights and why initial allocations matter" Emory Law Journal 49(3):823-836
• P.L. Loughlan (1998) Intellectual Property: Creative and Marketing Rights LBC Information Services, Sydney.
• C. Luthje (2000) Characteristics of innovating users in a consumer goods field: an empirical study of sport-related product consumers. MIT Sloan School of Management. Working Paper No 4331-02.
• T. Mandeville (1996) Understanding Novelty: Information, Technological Change and the Patent System. Ablex, Norwood, New Jersey.
• E. Mansfield (1985) "How Rapidly Does New Industrial Technology Leak Out?" Journal of Industrial Economics 34:217-223.
• E Marshall (2001) "Bermuda Rules: Community Spirit, With Teeth" Science 291(5507):1192
• S. Maurer (2001) "Inside the Anticommons: Academic Scientists' Struggle to Commercialise Human Mutations Data, 1999-2001" In Conference on the Capital, Economics and History of Intellectual Property. Haas School of Business, Berkeley, California.
• S. Maurer et al (2004) "Finding Cures for Tropical Disease: Is Open Source the Answer?" Public Library of Science: Medicine August, 2004. Available at http:/www.cptech.org/ip/health/rnd/opendevelopment.html
• K.W. McCain, (1991) "Communication, Competition, and Secrecy: the Production and Dissemination of Research-Related Information in Genetics" Science, Technology and Human Values 16(4):491-516.
• R.P. Merges, (1996) "Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organisations" California Law Review 84:1293
• R.P. Merges (2000) "Intellectual property rights and the new institutional economics" Vanderbilt Law Review 53(6):1857
• R. P. Merges (2001) "Institutions for intellectual property transactions: the case of patent pools" In Dreyfus & Zimmerman
• R. P. Merges & R. R. Nelson (1990) "On the Complex Economics of Patent Scope" Columbia Law Review 90:888.
• R.K Merton (1957) "The Normative Structure of Science"
• P.B. Meyer (2003) "Episodes of Collective Invention" BLS Working Papers Working Paper 368, US Department of Labour Bureau of Labor Statistics Office of Productivity and Technology.
• E. Moglen (2003) Questioning SCO: A Hard Look at Nebulous Claims. http://www.osdl.org/newsroom/articles/ebenmoglenpositionpaper/redirect_link
• J.Y. Moon & L Sproull (2001) "Turning Love into Money: How some firms may profit from voluntary electronic communities" http://userinnovation.mit.edu/papers/Vol-Customers.pdf
• M. Morgan (2002) "Data Release Issues Illustrated by Some Major Public-Private Research Consortia" In Symposium on the Role of Scientific and Technical Data and Information in the Public Domain National Academy of Sciences, Washington DC, 5-6 September 2002.
• P. Morrison, et al (20020 "The Nature of Lead Users and Measurement of Leading Edge Status" http://userinnovation.mit.edu/papers/4.pdf
• M Mulkay (1980) "Interpretation and the Use of Rules: the Csae of the Norms of Science' Transactions of the New York Academy of Sciences (series ii) 39:111-125
• M Mulkay (1976) "Norms and ideology in science" Sociology of Scientific Information 15(4/5):637
• A.M. Muniz & T.C. O'Guinn (2001) "Brand Community" Journal of Consumer Research 27:412-432
• R. Nelson What is public and what is private about technology? Center for Research In Management, Unvierstiy of California at Berkeley. Consortium on Competitiveness and Cooperation., Working Paper No. 90-9.
• R Nelson & R. Mazzoleni, (1997) Economic Theories About the Costs and benefits of Patents" In NR Council (ed) Intellectual Property Rights and Research Tools in Molecular Biology, National Academy Press, Washington DC.
• W. Norhaus (1969) Invention, Growth and Welfae: A Theoretical Treatment of Technological Change. MIT Press, Cambridge Mass.
• C. Nottenburg et al (2002) "Accessing Other People's Technology for Non-Profit Research" Australian Journal of Agricultural and Resource Economics 46(3):389
• H. Nowotny & K Taschwer (eds) (1996) The Sociology of the Sciences Edward Elgar Publishing Ltd, Cheltenham
• A Nuvolari (2001) "Collective Invention during the British Industrial Revolution: The Case of the Cornish Pumping Engine" http://fp.tm.tue.nl/ecis/Working
• S O'Mahony "Guarding the commons: how community managed software projects protect their work" Research Policy 32(7):1179
• D.W. Opderbeck (2004) "The penguin's genome, or Coase and open source biotechnology" http://ssrn.com/abstract=574804
• E Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge University Press, New York.
• M. Porter, "Strategy and the Internet" Harvard Business Review 79(3):63-80
• A. Rai (2003) "Collective Action and Technology Transfer: The Case of "Low Value" Research"  In Conference on International Public Goods and Transfer of Technology under a Globalised Intellectual Propery Regime, April 4-6, 2003, Duke Law School, Durham, North Carolina, http://www.law.duke.edu/trips/webcast.html
• J.H. Reichman & P.F. Uhlir (2002) "Promoting Public Good Uses of Scientific Data: A Contractually Restructured Commons for Science and Innovation" http://www.law.duke.edu/pd/papers/RechmanandUhlir.pdf
• N Rosenberg (1982) Inside the Black Box: Technology and Economics Cambridge University Press, New York.
• P. Samuelson (2001) "Digital Information, Digital Networks, and the Public Domain" In Conference on the Public Domain, Duke University School of Law, Durham, North Carolina, November 9-11,2001. Duke University
• S. Scotchmer (1991) "Standing on the Shoulders of Giants: Cumulative Research and the Patent Law" Journal of Economic Perspectives 5(1):29-41.
• A. Silverman (1995) "The Relationship Between Basic and Improvement Patents" Journal of Minerals, Metals and Materials 47(10):50.
• J. Sulston & G. Ferry (2002) The Common Thread  Random House, London.
• C.R. Sunstein "Social Norms and Social Roles" Columbia Law Review 96:903
• N. Thompson (2002) "May the Source Be With You" The Washington Monthly Online July/August 2002:1-5.
• E von Hippel (1988) Sources of Innovation. Oxford University Press, Oxford.
• E von Hippel (1994) "'Sticky Information' and the Locus of Problem Solving: Implications for Innovation" Management Science 40(4):429
• E. von Hippel (2002) "Horizontal Innovation Networks - by and for Users" http://opensource.mit.edu/papers/vonhippel3.pdf
• E von Hippel & G von Krogh (2001) "Open Source Software and a 'Private-Collective' Innovation Model: Issues for Organisation Science" http://opensource.mit.edu/hippelkrogh.pdf
• G von Krogh et al (2003) "Community, joining and specialisation in open source software innovation: a case study" Research Policy 32(7):1217
• G von Krogh & E von Hippel (2003) "Special issue on open source software development" 32(7):1149
• S. Weber (2004) The Success of Open Source. Harvard University Press, Cambridge, Mass.
• J West (2003) "How open is open enough? Melding proprietary and open source platform strategies" Research Policy 32(7):1259
• S. Williams (2002) Free as in Freedom: Richard Stallman's Crusade for Free Software. O'Reilly.

Dan Burk starts from the assumption that "technologies embody the values of their creator, and the values thus embodied may include social values otherwise unassociated with the artifact itself". He claims that this assumption is often the starting point in the humanities - that a created object can tell us much about the thought process that went into it - architecture and art being obvious examples. He notes that this will not always be the case, as sometimes choices will be determined by such things as manufacturing and marketing constraints.

This approach can be applied to the Internet, which despite any "cold war legacy of its predecessor, ARPAnet ... embodies the distinctly non-hierarchical attitudes of the researchers employed by the military. ... Subsequent to ints incarnation as ARPAnet, the network and its development were for a much longer and more critical period in the custody of the National Science foundation. ... Thus the early history of the network was dominated by academic research usage and academic users, both in computer science and other areas of basic research."

Thus Burk posits that the norms of science (namely the universalism, disinterestedness, communalism and organised skepticism of Merton, plus the individualism of Barber) have imprinted themselves on the design of the Internet. He finds early support for this in:

• the customs of netiquette;
• the "marked hostility toward commercial usage of the Internet that was not necessary simply to manage the commons" which dominated until times;
• the "hacker ethic" which emphasises sharing of resources and unrestricted informational flows;
• the structure of the network, which enables remote access and resources sharing (communalism);
• an assumption of "open access to publicly available files";
• a lack of support for user identification in favour of anonymity.

Now that the Internet has "passed from the exclusive provenance of the scientific community to that ofbroader society", the result is a culture clash. Burk cites spam as an example of an abuse of the open architecture of the Internet for commercial purposes. Similarly, the ability to hide ones identity is also prone to abuse.

To be continued....