Spotlight on Scholarship: Pedraza-Fariña and Schwartz on Intellectual Property and Patent Law

On October 3, Northwestern welcomed Judges Evan J. Wallach, Jimmie V. Reyna, and Richard G. Taranto of the U.S. Court of Appeals for the Federal Circuit to Thorne Auditorium to hear oral arguments. The arguments, covering patents and federal employment-related law, touched on issues being explored in faculty scholarship:  Laura Pedraza-Fariña and David Schwartz specialize in the complicated issues of intellectual property and patent law. 

Laura Pedraza-Fariña, Associate Professor of Law

Professor Laura Pedraza-Fariña’s scholarship on intellectual property law uses the methodology of history and sociology of science and technology to analyze and inform the design of patent law. Her most recent work studies how social norms that develop within innovator communities influence the types of problems and technological innovations that such communities will choose to undertake. Pedraza-Fariña is particularly interested in how innovator communities’ social norms interact with formal law—more specifically, with intellectual property law—to shape the direction of innovation. In her most recently published article, Anti-Innovation Norms, Pedraza-Fariña and her co-author explore the dark side of social norms for creativity and innovation. The Article describes how a subset of social norms (those that preserve community boundaries) can have important anti-innovation effects by preventing or delaying some of the most socially beneficial innovations—those that cross community or disciplinary boundaries. Prior studies on IP law and social norms had focused almost exclusively on the ability of social norms to foster innovation without incurring the monopoly costs of intellectual property protection. By describing a subset of social norms that can have anti-innovation effects, Pedraza-Fariña’s recent work highlights areas where formal law can be deployed to correct for suboptimal social norms. Other recent work has further explored how social networks can present additional social barriers to innovation, and employed case-study research to explore how teams and boundary-crossing networks of innovators rely on both formal law and social norms to assemble and maintain collaboration. She has also argued for the redesign of trade secret law to enable (rather than suppress) the emergence of informal networks of learning and collaboration that cut across firms.

Her interest in the emergence of social norms in innovator communities extends also to the study of “expert” or “epistemic” communities—communities that are bound by a common knowledge domain and often a common methodology. Synthesizing insights from several theoretical strands of the sociology of expertise, Professor Pedraza-Fariña has developed a model of Federal Circuit behavior based on analogizing the Federal Circuit to an expert community. She shows how many puzzling Federal Circuit behaviors, such as defiance towards the Supreme Court, and an insistence on rules versus standards, can be explained as the types of behavior one would expect when an expert community interacts with general, non-expert superiors and novice communities, such as the Supreme Court and District Courts, respectively.

David L. Schwartz, Stanford Clinton Sr. and Zylpha Kilbride Clinton Research Professor of Law

Professor David L. Schwartz has written extensively on patent litigation, mainly studying it utilizing empirical methods.  Even though patent law historically was viewed as non-glamorous, it grew into big business for companies and lawyers by the 1990s. After spending a decade in private practice as a patent litigator, Schwartz entered academics and has conducted research into important and controversial aspects of patent litigation. 

For instance, when the U.S. Supreme Court considered changing the standard of proof to show a patent claim is invalid as obvious, Schwartz conducted an experiment to measure the effects of such a change. He found that changing the standard would have a profound effect on mock jurors. In another article, Schwartz studied the relationship between the experience of the district court judge and the likelihood of reversal on the key patent litigation issue of claim construction. He found no evidence that judges with more experience were more accurate in their claim constructions. Schwartz also carefully studied all patent assertion entities (PAEs) who litigated in several years, both laying out a new classification scheme to more accurately and granularly identify PAEs and debunking the story of a rapid explosion of PAE litigation. Schwartz found that almost all of the increase in PAE litigation was explained by the change in the joinder rules for patent cases that occurred during the same period. In another article authored a few years ago, Schwartz examined the use of contingent fee representation in patent litigation. The article drew upon several sources of data, including in-depth interviews with over forty lawyers involved in contingent representation in patent litigation and examination of over forty contingent fee agreements. The article classified the market for contingent fee lawyers as including top-tier litigation firms taking on high value contingent cases, small entrants representing plaintiffs in lower value cases, and numerous general practice firms experimenting with contingent patent litigation. 

In 2014, Schwartz conducted a comprehensive study of outcomes in patent litigation, reporting success rates on patent validity, infringement, and enforceability for all patent lawsuits brought in 2008 and 2009. That study was later cited by the United States Supreme Court in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, 580 U.S. ___ (2017).