Patent

For insightful discussions and comments, I claim appreciation to Arnaud Ajdler, Ian Ayres, Michael Birnhack, Miriam Bitton, Robert Brauneis, Dan Burk, Kevin Collins, Christopher Cotropia, Kevin Davis, Rochelle Dreyfuss, John Duffy, Brett Frischmann, John Golden, Wendy Gordon, Hugh Hansen, Scott Hemphill, Timothy Holbrook, Bert Huang, Sonia Katyal, Amir Khoury, Roberta Kwall, Jeffrey Lefstin, Mark Lemley, Douglas Lichtman, Clarisa Long, Michael Madison, Peter Menell, Joseph Scott Miller, Mark Patterson, Anthony Reese, Pamela Samuelson, Susan Scafidi, Katherine Strandburg, Polk Wagner, Tim Wu, Shlomit Yaniski-Ravid, Benjamin Zipursky, and participants at the Seventh Annual Intellectual Property Scholars Conference, 2009 Stanford/Yale Junior Faculty Forum, and in workshops at Bar-Ilan, Brooklyn, Columbia, Fordham, and George Washington law schools.

I thank Richard Epstein, Mark Lemley, Saul Levmore, Doug Lichtman, and participants at the Licensing of Intellectual Property Symposium at The University of Chicago Law School for helpful comments. I also thank Joe Bingham for excellent research assistance.

A draft version of this paper was presented at the Licensing of Intellectual Property Symposium held at The University of Chicago Law School on June 18 and 19, 2010. This work is part of the ongoing Hoover Institution Project on Commercializing Innovation, which studies the law, economics, and politics of innovation and which is available online at http://www.innovation.hoover.org. We thank Kevin Outterson, Associate Professor at Boston University School of Law, for pointing out our errors in reading the emergency conditions in TRIPS Article 31 in an earlier version of this paper and Brett Davenport, New York University Law School, Class of 2012 for his prompt and expert research assistance.

I am grateful to participants in the Licensing of Intellectual Property Symposium at The University of Chicago Law School for helpful comments on an earlier draft.

Thanks to Lucian Bebchuk, Glenn Cohen, Einer Elhauge, Terry Fisher, John Goldberg, Allison Hoffman, Louis Kaplow, Scott Kieff, Martha Minow, Kevin Outterson, Steven Shavell, and the attendees at the Harvard Law and Economics Workshop, Harvard Health Policy Workshop, Harvard Faculty Workshop, University of Toronto Health Law, Ethics and Policy Seminar, George Washington Law School Conference on Government Innovation, and Michigan Law School Conference on FDA Law & Pharmaceutical Innovation. All errors are my own.

I thank Scott Baker, Chris Buccafusco, T.J. Chiang, Mark Lemley, Mark McKenna, Sean Pager, Pam Samuelson, Chris Sprigman, Felix Wu, and attendees of the 2017 WIPIP Conference at Boston University for their helpful comments.

For very helpful comments on prior drafts, I thank Michael Abramowicz, Robert Brauneis, Margaret Brinig, Kevin Collins, John Duffy, Jeanne Fromer, Timothy Holbrook, Bruce Huber, Dmitry Karshtedt, Daniel Kelly, Bruce Kobayashi, Mark Lemley, Alexandra Levy, Jonathan Masur, Mark McKenna, Robert Merges, Lisa Ouellette, Jason Rantanen, Michael Risch, and Neel Sukhatme. I also thank Joseph Nugent for his excellent research assistance.

I would like to thank Dmitry Karshtedt for his helpful comments and Stephen Yelderman for the opportunity to engage with his paper over the last few months.