Innovation Policy and Friends of the Court: Patent Right Advocacy before the U.S. Supreme Court
Professor James G. Conley, Northwestern University Engineering School and Kellogg School of Management
Professor David Orozco, Michigan Technology's School of Business and Economics
The lecture discussed the two professors' recent paper "Innovation Policy and Friends of the Court: Patent Right Advocacy before the U.S. Supreme Court".
Overview: Management research addressing intellectual property appropriability suggests that patents are an effective appropriability mechanism in a narrow segment of industries. This literature emphasizes the relative importance of patents compared with other institutional arrangements without examining the nature of patents as a bundle of property rights that may be used by parties in differing manners. As a consequence, patents are treated as one homogenous theoretical construct. Given this conceptual trajectory, patent property rights are largely regarded as exogenous variables in management appropriability literature.
This paper examines the endogenous nature of patent rights and examines the heterogenous advocacy of these rights across a variety of industry participants, labeled here as patent right stakeholders. To do this, a qualitative secondary legal data source known as amicus briefs is used to provide initial ex-ploratory justification for the diversity of patent right stakeholder behavior. Friends of the court file amicus briefs, a form or advocacy that has been researched in the fields of law and political science as a proxy to measure the social significance of court cases. Firm interests as expressed in amicus briefs provides a potentially rich and appropriate data source for management scholars. Analysis of these briefs yields insight on how a diverse set of advocacy groups experiencing a breadth of competitive circumstances attempt to shape the rules of the market game through amicus based advocacy in front of the USSC. This is in contrast to firms playing by the rules of the game within a narrow industrial context, e.g. semiconductor cross-licensing.
Firm behavior observed through amicus briefs provides the opportunity to examine new puzzling questions related to patent appropriability among a broader conceptualization of patent right stake-holders.