Catholic Law Professor Elizabeth Winston has recently published two new articles addressing the impact of legislation on American innovation in America. In “Bargaining for Innovation,” published in Villanova Law Review, Winston discusses institutional choice and how it is shaping advances in innovation, through the lens of the apple orchard. She argues that the apple industry, one example she highlights in her article, has undergone radical and rapid changes due to an evolving understanding of how intellectual property can be used to protect innovation. Professor Winston highlights the need to reform the system to maximize the reward to innovators while still protecting the public’s best interests. Winston’s other article, “Information Age Technology, Industrial Age Laws,” in Tennessee Law Review, also comments on modernizing legislative understanding to promote innovation incentives in the Information Age. With the increasing intangibility of innovation, laws established in the Industrial Age are antiquated and must be reinterpreted to more fully protect the evolving technological world. Winston posits that “it is time for a change in the system to reflect the realities of modern technology.”

Villanova Law Review
By: Elizabeth Winston
Date: 2021
Bargaining for Innovation

…

Intellectual property laws incentivize innovation and grant innovators limited exclusivity in return for their contribution to the storehouse of public knowledge. That limited reward is not enough for all markets, however. Faced with pressure to increase returns on their investments in research and development, intellectual property owners are circumventing the legislative restrictions and enhancing their bottom line through contracts. Replacing legislated protection with private ordering vitiates the protections for public interest inherent in public ordering and reduces the dedication of innovations to the public while increasing the cost to the consumer. Licenses protect those with market power and prioritize the innovator’s interest over the public’s interest.

…

Click here to read the full article.

Tennessee Law Review
By: Elizabeth Winston
Date: 2021
Information Age Technology, Industrial Age Laws

…

Technology is outpacing our patent system. Intangible innovations are eroding geographic boundaries and defying categorization. Absent change, those leading the evolution will leave the patent system behind, seeking protection through private ordering, the use of trade secrets, or other forms of protection that do not uphold the public’s interest in building a storehouse of knowledge. The Industrial Age laws, as currently interpreted, are not well-suited for the changing and evolving technological world.

…

Click here to read the full article.