Current Issue: Volume 22
Artificial intelligence (AI) is on everyone’s lips and is in everyday use. Yet discussion of what this means for our present and futureparticularly in terms of the revolutions that AI might bring to the legal sphere—has only just begun. One topic that warrants, but has yet to receive, in-depth attention is the relevance of AI for innovative and creative activity and production. Legal analyses thus far have focused on humans and their role as innovators, authors, or creators. Left in the dark, however, is the question of how to regulate AI when it “innovates” or “creates” autonomously—without human direction or intervention.
Trade secret has drifted from a quiet backwater doctrine to a pervasive force in intellectual property. As always, the risk of distortion is great when a legal arena is developing and expanding rapidly. Nowhere do the theoretical tensions of trade secret law appear in such stark relief as in the modern pharmaceutical debates, where the heart of the theoretical question involves whether pricing is a proper subject for trade secrecy claims.
The U.S. Constitution authorizes Congress to issue patents to promote progress in the useful arts, which we interpret as increasing economic growth through innovation. To ground patent law, we formulate two principles of growth economics. First, selling patents to consume or produce transfers resources to innovating, which speeds growth. Conversely, selling patents to innovate redistributes resources among innovators with deadweight loss, which usually slows growth. Thus, patent protection should be strong against using an innovation to produce or consume, and weak against using an innovation to innovate (separation principle). Second, human welfare can increase exponentially from innovation and quickly overtake any losses from static inefficiency or inequality (overtaking principle). Welfare overtaking is the ethical and political justification of the Constitution’s patent clause. Like the Constitution, welfare overtaking suggests that patent interpretation and policy should focus on innovation, not static efficiency or redistribution. Separation and overtaking guide patent law toward its constitutional purpose and increases social welfare from innovation. Alas, in recent years, patent policy has lost its economic foundations. Courts are making doctrinal adjustments that celebrate commercial success instead of innovative superiority (in contrast to the separation principle), and Congress is called upon to reduce static inefficiency concerns and improve consumer access (in contrast to the overtaking principle). This Article criticizes these recent legal developments and proposes several doctrinal adjustments to the law of improvements and experimentation that would bring patent policy closer to its constitutional mandate.
Industry players and opponents of privacy regulation claim broadly that privacy regulation will “stifle” innovation. This Article responds by bringing together traditional theories of regulation and innovation policy, and applying them in the context of markets involving personal information. Dire predictions about regulation’s impact on innovation are common in many arenas, but seem to hold particularly great policy sway with regard to information privacy regulation. Here, we seek to bring analytical clarity to the debate about information privacy regulation, by showing how the interplay between misaligned demand signals in personal information markets and incentive distortions associated with variation in the extent to which suppliers can appropriate returns from innovative activities jointly determine whether and how the unregulated market’s innovation portfolio deviates from the portfolio of innovative activity that would be most socially desirable.