This contrasts to a considerable degree with the emerging pattern in patent policy debates. Over the last 20 years, a fairly robust research enterprise has developed, aided by efforts to make patent applications, patent litigation, and related data available in a form usable by researchers. This body of work has examined how firms in industries as different as semiconductors and biotechnology acquire and use patents, how government examiners in the patent office review and act on patent application claims, how the patent system affects different classes of patent users ranging from entrepreneurs to universities and large multinational businesses, and how patent validity and infringement disputes are handled by the courts and in post-grant challenge proceedings (Cohen and Merrill, 2003).
Empirical research on patents, some of it cross-national as well as across industries, spans the social science disciplines, is increasingly common in legal scholarship, and in various ways is becoming institutionalized. It is a principal focus of the innovation and productivity program of the National Bureau of Economic Research (NBER), which created and maintains the largest patent database tailored to research purposes (Griliches, 1990). Research projects related to patents have been among the portfolio supported by the National Science Foundation’s Science of Science and Innovation Policy Program (SciSIP) since its inception in 2005. And in 2008 the U.S. Patent and Trademark Office (USPTO) created the Office of Chief Economist to promote and conduct a wide range of research on the management and effects of the patent system, following a recommendation of the National Academies and the examples of the European Patent Office (EPO) and World Intellectual Property Organization (WIPO).
Research on the patent system has not eliminated controversy or accelerated the enactment of legislation. Passage of the America Invents Act, a set of sweeping reforms of U.S. patent law signed into law in 2011, was a protracted and contentious process. But evidence from research was regularly cited both in the genesis of many of the reform proposals and in their discussion and resolution (Federal Trade Commission, 2003; Merrill, et al., 2004). Likewise, research results have been cited in the legal briefs and decisions in several of the landmark federal appeals court decisions of the last decade. Most important, when new issues arise in patent law and policy, it is usually not long before parties to the debate ask, “What is the research-based evidence?” rather than rely solely on the claims of practitioners and other stakeholders. We consider these positive developments and believe that copyright issues could benefit from a similar investment in research.