Search the archive.

In light of increasing global integration and various international outreach activities by the U.S. judiciary, the timing is right for expanding cross-border cooperation and interaction among judiciaries.98 Relationships have developed over the past several decades among judicial systems making information exchanges in civil cases possible on a level never seen before. Judges increasingly appreciate that they function within a common transnational system. Cooperative activities including international educational exchanges, “sister-court” relationships, judicial outreach activities, international judicial conferences, informal meetings, seminars, and similar opportunities for transnational judicial interaction have furthered cordial relationships. Interaction during cross-border criminal cases has done the same.

These activities have also laid a strong foundation for certification- like arrangements. The relationship between the court systems of New York and New South Wales, Australia (NSW) is a prime example. In 2010, the New York state judiciary entered into an informal certification procedure with the NSW courts in the form of a bilateral Memorandum of Understanding (MOU) that contemplates reciprocal cooperation and consultation between their respective judicial systems to enable the parties to obtain correct and authoritative applications of law.99 As the first agreement of its kind between a U.S. and foreign judicial system, this MOU was also designed to combat the high cost of legal experts and reduce the confusion caused by conflicting accounts of foreign law.100 In principle, with the litigants’ consent, the MOU allows both jurisdictions to exchange analysis about a contested dispositive legal issue.101

A world dominated by totalitarian states would be more incompetent, more war-prone, less cooperative, and more inhibitive of progress than one dominated by democratic states. Our current world is not particularly competent, peaceful, cooperative, or progressive—a totalitarian-dominated world would be worse. It would increase the risk of another collapse and extinction and could shape the future toward less desirable trajectories (Beckstead, 2013). Totalitarian states are incompetent. They are bad at forecasting and dealing with disasters (Caplan, 2008).16 This can be seen most clearly in the great famines of Communist China and the USSR, in which millions died (Applebaum, 2017; Becker, 1996; Dikotter, 2010; Snyder, 2010). In comparison, functioning multiparty democracies rarely, if ever, experience famines (Sen, 2010). “Established autocracies” (or “personal”/“sultanist”) are particularly bad, as there are few checks or restraints on arbitrary rule and the whims and ideology of the single individual, even from other elites (Svolik, 2012). From the inside, the “inner circle” around Mao, Stalin, and Hitler seems incredibly chaotic, with elites strongly incentivized to conceal information and encouraged by the autocrat to squabble and feud—so they are divided (Conquest, 1992; Kershaw, 2008; Zhang & Halliday, 2006). If totalitarian states are worse at addressing social, environmental, and technological problems, then a world dominated by them would likely be worse at responding to risks of collapse and extinction. A world dominated by totalitarian states is more likely to have major wars. States with near-universal adult suffrage rarely (if ever) go to war with one another (Barnhart et al., 2020), so a world dominated by democracies has fewer wars. Miscalculation might be a particular problem for totalitarian states due to personalization and disincentives for accurate information, leading to well-known strategic disasters such as Hitler and Stalin’s blunders in World War II (Bialer, 1970; Noakes & Pridham, 2001), or at a smaller level, Saddam Hussein’s rejection of diplomacy (Atkinson, 1993). War makes collapse and extinction more likely, by raising the chance of weapons of mass destruction being used. Linked to this, totalitarian states are less cooperative than democratic states. While cooperation is possible (Ginsburg, 2020), their internal norms are characterized by paranoia and treachery, and their lack of transparency limits their ability to credibly commit to agreements. This is bad for all risks that require cooperation such as pandemics or climate change (Tomasik, 2015). Finally, continued social and scientific progress is likely to reduce risks of collapse and extinction. Social progress could reduce global inequality and other risk factors. Scientific progress could help address natural risks and climate change (Sandberg, 2018), differentially increase defensive rather than offensive power (Garfinkel & Dafoe, 2019), and solve safety challenges in AI or biotechnology (Russell, 2019). However, as we will now discuss totalitarian states would likely inhibit social progress. A central question from a longtermist perspective is: Which values should shape the future? I would argue that we should prefer it to be shaped by liberal democratic values. This is not to say that the current democracy-dominated world is perfect—far from it. The fate of billions of factory-farmed animals or hundreds of millions of people in extreme poverty makes that abundantly clear. However, democracies have two advantages. First, democracies have space for cosmopolitan values such as human rights, plurality, freedom, and equality. These are better than those that characterize life under totalitarianism: Fear, terror, subjection, and secrecy. Second, they have within themselves the mechanism to allow progress. In the last 100 (or even 50) years, the lives of women, LGBT people, religious minorities, and non-white people have dramatically improved. Our “moral circle” has expanded, and could continue to expand (Singer, 1981). The arc of the moral universe is long, but given the right conditions, it might just bend toward justice (King, 1968). A global society dominated by these values, and with the possibility of improving more, has a better longterm potential. A totalitarian-dominated world, on the other hand, would reduce the space for resistance and progress—distorting the human trajectory. We should be particularly concerned about “bottlenecks” at which values are particularly important—where there is a risk of “locking-in” some particular set of (possibly far from optimal) values. While they are currently far-off, future technologies such as artificial general intelligence, space settlement, life extension (of autocrats), or much better surveillance could enable lock-in (Caplan, 2008).17 Conditional on them avoiding new catastrophes, world orders dominated by totalitarians could be quite long-lasting (Caplan, 2008). Democracies can undermine authoritarian and totalitarian regimes through the following ways: Control, including conquest; contagion through proximity; and consent, promoting receptivity toward democratization (Whitehead, 2001). Democracies can actively undermine these regimes through war, sanctions, hosting rebellious exiles, or sponsoring internal movements. Passively, through contagion, they offer a demonstration that a better, more prosperous life is possible. For example, in the final years of the USSR, ordinary Soviet citizens were able to see that the West had a higher standard of living—more innovation, more choice, and more consumer goods. The elites were able to read books from the outside, and travel—Gorbachev’s contacts and friendships with European politicians may have made him more favorable to social democracy (Brown, 1996). Democracies can undermine the will and capacity of the coercive apparatus (Bellin, 2004). However, in a world not dominated by democracies, all these pressures would be far less. A world in which, say, totalitarian regimes emerged as dominant after World War II (for example if the USA was defeated) could be self-reinforcing and long-lasting, like the self-reinforcing relationship of Oceania, Eurasia, and Eastasia (Orwell, 1949). Orwell’s fictional world is characterized by constant low-grade warfare to justify emergency powers and secure elites, and with shifting alliances of convenience as states bandwagon and balance, thereby preventing any resolution. A totalitarian-dominated world order could be rather robust, perhaps for decades or even centuries. A long-lasting totalitarian-dominated world would extend the period of time humanity would spend with a heightened risk of collapse or extinction, as well as increased potential for distortion of the human trajectory and the possibility that a “lock-in” event may occur. This example illustrates the possibility of a “negative recovery,” resulting in a trajectory with less or no scientific and social progress and a less favorable geopolitical situation, which would threaten the destruction of humanity’s longterm potential.

The democratic peace — the idea that democracies rarely fight one another — has been called “the closest thing we have to an empirical law in the study of international relations.” Yet, some contend that this relationship is spurious and suggest alternative explanations. Unfortunately, in the absence of randomized experiments, we can never rule out the possible existence of such confounding biases. Rather than commonly used regression-based approaches, we apply a nonparametric sensitivity analysis. We show that overturning the positive association between democracy and peace would require a confounder that is 47 times more prevalent in democratic dyads than in other dyads. To put this number in context, the relationship between democracy and peace is at least five times as robust as that between smoking and lung cancer. To explain away the democratic peace, therefore, scholars must find far more powerful confounders than already those identified in the literature.

P8. We have no quarrel with the point at which the balance between merits (justice) and process (efficiency) intersects in most civil and criminal litigation. In fact, merits may be difficult to determine in the majority of cases simply because we possess no infallible method to determine with certainty historical facts. Fair, not perfect, process is all that is required. United States v. Hasting, 461 U.S. 499, 508-09 (1983) ("no such thing as an error-free, perfect trial, and ... Constitution does not guarantee such a trial"). Indeed, fair process may be an appropriate surrogate for right merits. Judicial resources are finite. If lavished or squandered on one piece of litigation, they are not available for use on another piece of litigation. Thus, justice rendered in one case is justice denied in the other. Nevertheless, we vigorously argue in these materials that litigation itself is not fungible. Some cases are more important than others, not to the litigants, but to the society. Litigation rightly raising free speech or expressive conduct issues is more important than other kinds of litigation. See supra note 133 (while individual rights are personal, free speech issues warrant special standing rules). Accordingly, we identify in these materials in each particular context where and when the present standards of review for speech or expressed conduct and personal responsibility in the federal criminal law must be more faithfully applied or rethought and reformulated, that is, particularized in light of the importance of these values, which are insistently implicated in this kind of litigation in a free society.

In each of the eight previous TROs obtained by plaintiff, as well as the two previous TROs obtained by defendant, and also in regard to the eight previous contempt charges between them, (all of which were ultimately dismissed prior to an adjudicatory hearing), the local police department (usually the Cherry Hill Police Department) had to investigate the allegations of domestic violence, and the allegations then had to be presented to the municipal court judge so that a TRO determination could be made.  Rule 5:7A. In most of the domestic violence allegations, or allegations of violations of TROs, police reports were prepared by the investigating police department, and after the matter was presented to the municipal court judge and the TROs were issued, the TROs had to be processed by the domestic violence unit of the Family Division in the Superior Court, **311 and set down for a hearing date to determine if an FRO should be issued.  The resources of both law enforcement and the court system are finite, and time and personnel *578 spent on this plaintiff's TROs represents lost time and resources not being spent on domestic violence matters and other emergent matters that might otherwise warrant greater attention than may have been received.  The TRO history of these parties has made a mockery of the Domestic Violence Act, and trivializes same.  The Appellate Division noted, in a different context, that "There are too many substantial and significant domestic violence matters requiring the urgent attention of the court system to squander judicial and prosecutorial resources on patently unmeritorious litigation......" State v. Wilmouth, 302 N.J.Super. 20, 23, 694 A.2d 584 (App.Div.1997).  In the present case, the court is less concerned that the numerous previous TROs were "unmeritorious" than it is concerned that the constant cycle of obtaining a TRO and then shortly thereafter dismissing the TRO is squandering judicial and law enforcement resources and diverting attention from urgent and meritorious domestic violence matters.  It should be noted that, according to records obtained from the Administrative Office of the Courts, in calendar year 2000 there were 36,021 TROs issued statewide, with 3,528 TROs being issued in Camden County.  Camden County was second only to Essex County in the amount of TROs issued during that year.

n80. See, e.g., Friedenthal et al., supra note 34, 14.3, at 653 ("The interest of the judicial system in preventing relitigation of the same dispute recognizes that judicial resources are finite and the number of cases that can be heard by the courts is limited. Every dispute that is reheard means that another will be delayed. As modern court dockets are filled to overflowing, this concern is of critical importance. Res judicata thus conserves scarce judicial resources and promotes efficiency in the interest of the public at large.").

Concern over excessive litigation in the federal courts is old hat ... [and] also typically exaggeration... . The truth about the "litigation explosion' is that it is a weapon of perception, not substance. If the public can be persuaded that there is a litigation crisis, it may support efforts to cut back on litigation access.

In the background of these decisions are limited resources. Judicial vacancies, or resource constraints more generally, may impact the number of cases that can be prosecuted and tried. When there are fewer judges available, prosecutors may incur costs from prosecuting a case regardless of whether the defendant ultimately goes to trial. For instance, the Speedy Trial Act of 1974 establishes time limits for completing various stages of a federal criminal prosecution. In general, the Act requires the government to file an indictment within 30 days of a defendant’s arrest. If a defendant enters a plea of not guilty, he or she must be tried within 70 days of the indictment, which can be extended if a judge grants a continuance.4

How binding is the constraint imposed by the Speedy Trial Act during judicial vacancies? While data on the number of speedy trial violations over time is lacking, anecdotal evidence suggests that judges are unwilling to perpetually extend the time required to go to trial, noting that unless vacancies are filled, they would be required to dismiss some criminal cases.5 In 2010, the American Bar Association noted that the strain judicial vacancies imposed on caseloads forced federal judges to allocate their limited time to criminal cases because of “speedy trial rules that require them to put criminal cases first,” resulting in civil proceedings being put off.6 In fact, judicial vacancies have posed such severe speedy trial issues that in January 2011, the federal district court in Arizona enacted a year-long, emergency suspension of the mandated speedy trial time limitations because of the court’s shortage in judges.

If we take my argument in Part II as a given--that is, if we assume for present purposes that claims provide valuable but imperfect information about the invention--then what should a court do with them as a policy matter? A common intuition holds that a court's job is to reach the most accurate outcome possible. That is, a court should try to discern the real invention and the optimal patent scope. Of course, even in an individual case, a court is constrained in its pursuit of accuracy by finite adjudication resources. Courts cannot realistically hold multiyear trials, nor can they summon thousands of experts. Thus, our initial focus on accuracy must be qualified: courts should attempt to achieve the most accurate outcome given their available resources. Notwithstanding such resource constraints, however, the intuition is that no artificial limits should be imposed. Within this paradigm, a court should allocate its budget to maximize its ability to pursue the truth: the court should collect as much evidence as feasible and then consider all that evidence on an equal basis. By equal weight, I do not mean that a court would say the following: "Witness A, the upstanding citizen, says the defendant stabbed the victim, while Witness B, the known habitual liar, says the defendant did not, and because all evidence is given equal weight, the result is a toss-up." Rather, I mean that a court will consider all the evidence in light of its credibility and in the totality of the circumstances, to get to the result that is most likely to reflect the underlying factual truth on the question at issue. The contradistinction is to a regime where courts are required by a preset rule to favor or disfavor certain types of evidence. For example, a court that excludes a bloody knife that the police obtained through an illegal search thereby gives this evidence zero weight. The court does so not because it thinks that the knife is unreliable evidence or that the underlying factual truth is that the defendant is innocent. It does so because the preset exclusionary rule mandates that courts accord zero weight to evidence obtained through illegal searches. By definition, therefore, a court that is seeking to maximize accuracy in an individual case would consider equally all the available evidence. But this formulation is not just a rhetorical trick. The substantive point is that, if the goal is simply to maximize accuracy, the law should rarely have categorical rules that exclude or disfavor broad swaths of evidence. It should instead [*547] use a totality-of-the-circumstances inquiry that considers both the claim text and all reasonably collectible extrinsic evidence. And such totality-of-the-circumstances inquiries are what Corbin and his fellow travelers in patent law generally propose.

The excessively politicized confirmation process is not the only or even the biggest problem the federal judiciary faces. Across the country, federal courts carry overwhelming backlogs that are de facto deferring or denying justice to thousands of people.

When federal courts can’t keep up with caseloads, parties who require a federal forum to redress wrongs, vindicate their rights, or fight an injustice as a matter of jurisdiction are harmed—sometimes profoundly. Plaintiffs and defendants alike accept compromises and sacrifices they should never have to entertain. A prime example from the civil system is arbitration. Proceedings before arbiters rather than judges and juries favor so-called “repeat players,” i.e., corporations and other deep-pocketed parties, who, accordingly, vocally advocate for arbitration as a solution to the backlog. Even when arbitration yields a just result, it does not create precedent that will help others facing the same issues in the future.

Collectively, this means that judges must understand the real-world implications of legal decisions. This is a critical ability because the federal courts have an impact on every issue that affects Americans’ daily lives. U.S. federal courts ensure equality, defend civil rights, protect the environment, affect the health of America’s democracy, and keep the nation safe. While Americans often feel that the federal courts are untouchable, it is important to know that they can play a large role in how these courts rule, as those responsible for filling the benches of U.S. federal courts are responsive to the democratic process and the input of American citizens.

Trump, however, may pursue populist, anti-globalization, and protectionist policies that hinder trade and restrict the movement of labor and capital. And he has cast doubt on existing US security guarantees by suggesting that he will force America’s allies to pay for more of their own defense. If Trump is serious about putting “America first,” his administration will shift US geopolitical strategy toward isolationism and unilateralism, pursuing only the national interests of the homeland.

When the US pursued similar policies in the 1920s and 1930s, it helped sow the seeds of World War II. Protectionism – starting with the Smoot-Hawley Tariff, which affected thousands of imported goods – triggered retaliatory trade and currency wars that worsened the Great Depression. More important, American isolationism – based on a false belief that the US was safely protected by two oceans – allowed Nazi Germany and Imperial Japan to wage aggressive war and threaten the entire world. With the attack on Pearl Harbor in December 1941, the US was finally forced to take its head out of the sand.

The question is not whether the United States is still capable of prevailing in a global confrontation, either hot or cold, with China or any other revisionist power. It is. The real question is whether the worst kinds of hostilities can be avoided, whether China and other powers can be encouraged to pursue their aims peacefully, to confine the global competition to the economic and political realms and thus spare themselves and the world from the horrors of the next great war or even the still frightening confrontations of another cold war. The United States cannot avoid such crises by continuing to adhere to a nineteenth-century view of its national interest. Doing that would produce what it produced in the past: periods of indifference and retrenchment followed by panic, fear, and sudden mobilization. Already, Americans are torn between these two impulses. On the one hand, China now occupies that place in the American mind that Germany and the Soviet Union once held: an ideological opponent that has the ability to strike at American society directly and that has power and ambitions that threaten the United States’ position in a key region and perhaps everywhere else, too. On the other hand, many Americans believe that the United States is in decline and that China will inevitably come to dominate Asia. Indeed, the self-perceptions of the Americans and the Chinese are perfectly symmetrical. The Chinese think that the United States’ role in their region for the past 75 years has been unnatural and is therefore transient, and so do the Americans. The Chinese believe that the United States is in decline, and so do many Americans. The danger is that as Beijing ramps up efforts to fulfill what it has taken to calling “the Chinese dream,” Americans will start to panic. It is in times like this that miscalculations are made. Perhaps the Chinese, careful students of history that they are, will not make the mistake that others have made in misjudging the United States. Whether Americans have learned the lessons of their own history, however, remains to be seen. A century-long pattern of oscillation will be difficult to change. It will be especially so when foreign policy experts of all stripes regard support for a liberal world order as impossible and immoral. Among other problems, their prescriptions suffer from an unwarranted optimism about the likely alternatives to a U.S.-led order. Realists, liberal internationalists, conservative nationalists, and progressives all seem to imagine that without Washington playing the role it has played these past 75 years, the world will be just fine, and U.S. interests will be just as well protected. But neither recent history nor present circumstances justify such idealism. The alternative to the American world order is not a Swedish world order. It will not be a world of law and international institutions or the triumph of Enlightenment ideals or the end of history. It will be a world of power vacuums, chaos, conflict, and miscalculation—a shabby place indeed. The messy truth is that in the real world, the only hope for preserving liberalism at home and abroad is the maintenance of a world order conducive to liberalism, and the only power capable of upholding such an order is the United States. This is not an expression of hubris but a reality rooted in international circumstances. And it is certainly a mixed blessing. In trying to preserve this order, the United States has wielded and will wield power, sometimes unwisely and ineffectively, with unpredictable costs and morally ambiguous consequences. That is what wielding power means. Americans have naturally sought to escape this burden. They have sought to divest themselves of responsibility, hiding sometimes behind dreamy internationalism, sometimes behind a determined resignation to accept the world “as it is,” and always with the view that absent a clear and present danger, they can hang back in their imaginary fortress. The time has come to tell Americans that there is no escape from global responsibility, that they have to think beyond the protection of the homeland. They need to understand that the purpose of NATO and other alliances is to defend not against direct threats to U.S. interests but against a breakdown of the order that best serves those interests. They need to be told honestly that the task of maintaining a world order is unending and fraught with costs but preferable to the alternative. A failure to be square with the American people has led the country to its current predicament, with a confused and angry public convinced that its leaders are betraying American interests for their own nefarious, “globalist” purposes. The antidote to this is not scaring the hell out of them about China and other threats but trying to explain, again, why the world order they created still matters. This is a job for Joe Biden and his new administration.

SIA frequently points out that semiconductors play a critical role in strengthening our country, including our national security. A concrete example comes from a new semiconductor developed by the Defense Advanced Research Projects Agency (DARPA) that gives our military a measurable advantage in one critical arena of the modern battlefield: electronic warfare. As DARPA explains, the advance is an exceptionally high-speed analog-to-digital converter (ADC) that is enabled by 32 nanometer silicon-on-insulator (SOI) semiconductor technologies. This advance allows the ability to operate spectrum-dependent military capabilities such as communications and radar without allowing the enemy to disable or “jam” them. The development of this new semiconductor-enabled DARPA technology has a couple critical implications for policymakers. First, it underscores the strategic nature of the U.S. semiconductor industry to our country’s national security. As a recent Washington Post article describes, other “near peer” adversaries have strong electronic warfare capabilities, so to maintain global U.S. military leadership semiconductor technology will continue to play a critical role. As a result, the U.S. semiconductor industry must continue to maintain global industry leadership.

U.S. semiconductor companies, including several SIA members, were among the top corporate recipients of U.S. patents in 2015, according to an analysis of new data from the U.S. Patent and Trademark Office. U.S. semiconductor companies perennially rank high on the list of top patent recipients. This is partly because U.S. semiconductor companies invest a higher share of sales into research and development than any other U.S. industry. On average, the U.S. semiconductor industry invests about one-fifth of total sales into R&D. While this is a huge amount, it does not guarantee company success in the industry. Rather, it is simply the business model that firms must adopt to compete in such a highly innovative and competitive industry. It therefore comes as little surprise that much of this investment in R&D results in a large number of inventions that receive patent protection. For such an R&D-intensive industry to thrive, patents and other forms of intellectual property must be protected. Only in such an environment can innovation continue. This is why one of SIA’s top policy priorities is the protection of intellectual property. Intellectual property is the lifeblood of the U.S. semiconductor industry, and its protection is critical for continued U.S. global leadership—and continued high rankings on future lists of top U.S. patent recipients!

Historically, disease events have been responsible for the greatest death tolls on humanity. The 1918 flu was responsible for more than 50 million deaths,1 while smallpox killed perhaps 10 times that many in the 20th century alone.2 The Black Death was responsible for killing over 25% of the European population,3 while other pandemics, such as the plague of Justinian, are thought to have killed 25 million in the 6th century—constituting over 10% of the world’s population at the time.4 It is an open question whether a future pandemic could result in outright human extinction or the irreversible collapse of civilization.

A skeptic would have many good reasons to think that existential risk from disease is unlikely. Such a disease would need to spread worldwide to remote populations, overcome rare genetic resistances, and evade detection, cures, and countermeasures. Even evolution itself may work in humanity’s favor: Virulence and transmission is often a trade-off, and so evolutionary pressures could push against maximally lethal wild-type pathogens.5,6

Being that it is an exclusive right to a piece of knowledge, patents are often considered to be a kind of monopoly. Criticism has been heaped upon patents in exactly the way one would expect given this definition. The creation of intellectual property rights creates an allowable exclusivity. Yet, it should be immediately apparent that patents do not automatically confer a monopoly over an industry. For example, a pharmaceutical company that invents a new and improved cancer medicine is still in competition with alternatives from other companies, which ultimately acts as a constraint on their ability to charge prices above a competitive level.

Commercial success is tied to more than just an innovative idea; superior marketing, management, positioning, and other factors are likely to be more important than the patent itself. Moreover, individuals and companies will seek multiple solutions to the same problem, whether that might be in new commercial arrangements or products. By limiting a particular avenue for competitors, patents have the potential effect of promoting further innovation by encouraging others to develop new products.

Therefore, without green technology, it would be difficult, if not impossible, to meaningfully mitigate climate change. This is notwithstanding the important roles policy, education, and changes of basic habits have to play in the climate change solution equation. This fundamental role of green technology, coupled with the global issue of the climate change problem, distinguishes green technology from other technologies. As a result, there are clear benefits to closing the knowledge gap in terms of such technology between developed, developing, or least developed countries, and facilitating access to green technology. III. Intellectual Property and Technology A. Intellectual Property Intellectual property rights are central to technology as they are often73 embodied and conceptualized in the form of proprietary rights, which are transferrable, licensable, and subject to trespass in the form of infringement. Article 7 of the Agreement on Trade-Related Aspects of Intellectual Property Rights74 (TRIPS) acknowledges this role of intellectual property rights: The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. It may be convenient to consider intellectual property as one general unit when discussing its relationship with innovation. However, as each type75 of recognized intellectual property serves different roles, a general label of “intellectual property” may over-simplify certain matters.76 Accordingly, it may not do justice to the issues at hand to equate technology to just one type of intellectual property.77 The fact of the matter is that the role of different intellectual property rights varies between different industries and different technological fields.78 As will be discussed in more detail below, different types of intellectual property have different relationships with technology; some are more relevant to technology and some are less. The subject matter of certain types of intellectual property may be more at the forefront of developing technology than others. For example, computer programs, which are normally protected by copyright,79 are usually technical in nature. Also, patents have traditionally been considered the type of intellectual property that best relates to technology since only new inventions are patentable.80 In fact, the relationship between patents and innovations has attracted much attention and is currently a common subject of discussion.81 In order to distinguish technical types of intellectual property and non-technical types of intellectual property, they may be broadly categorised as “Technological IP” and “Non-Technological IP” respectively. Such a distinction can be seen as akin to what Hughes identified in his article The Philosophy of Intellectual Property82 as nonexpressive and expressive intellectual property. Hughes discussed whether the former is more deserving of legal protection than the latter.83 More technical subject matter, such as patents, would require less expressive activities in their creation, whereas artistic works, literary works (not being computer programmes or circuit drawings), and trademarks are less technical and as a consequence would require more expressive activities in their creation. Accordingly, Technological IP (the more technical subject-matter of the two categories) may include patents, integrated circuit designs, copyright in relation to computer programs, and protection against unfair competition (including trade secrets and confidential information). In contrast, Non-Technological IP, on the other hand, may include copyright (not including computer programs or circuit drawings), trademarks, industrial designs, geographical indications, and protection against unfair competition (including trade secrets and confidential information). The distinction between the two categories is relevant to the present discussion because their impact on the development and diffusion of green technology differ; as a consequence justifications may, therefore, also differ. While there may be personality and labour justifications in connection with intellectual property, insofar as green technology is concerned, entitlement or deservedness of greater or lesser legal protection is beside the point. Rather, due to the state of the climate change emergency and the impact intellectual property laws have on the development and adoption of green technology, no matter how much investors and inventors deserve to reap the fruits of their labour, such entitlement should not outweigh the benefit of flexible access to them. However, as will be seen below, notwithstanding the moral argument, the benefits of commercial incentives may outweigh any negative consequences of intellectual property rights. B. Technology Technology is given many definitions. It has been defined as “the application of scientific knowledge to the practical aims of human life or, as it is sometimes phrased, to the change and manipulation of the human environment.”84 In general, technology is the result of innovation and applied knowledge that is the direct or indirect result of the human mind, and technology may be categorized as “low,”85 “medium,”86 and “high.”87 The driving force behind technology is innovation.88 The OECD defines innovation as “the implementation of a new or significantly improved product (good or service), or process, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations.”89 Innovation is not confined to the research and development of technology, but includes its adoption and diffusion.90 Accordingly, the impact on green technology we are considering in this paper is the impact of intellectual property rights on innovation of technology.91 1. IP and Green Technology (Generally) Interestingly enough, the greatest contributing factor to the increase in greenhouse gas emissions arises from industrial development; patent laws encouraged industrial development because both were developed during the commencement of industrialisation.92 Although technology is blamed for the cause of “man-made” climate change, it is also widely recognized as a solution to the same.93 This reasoning also applies to intellectual property rights, which may have contributed to climate changing technologies but may also have spurred the development of green technology.94 There is a growing discussion regarding how intellectual property rights affect the development of green technology and how such rights can be used to facilitate the diffusion and development of such technology.95 The Intergovernmental Panel on Climate Change has highlighted that, of the different technologies96 that have significant roles in mitigating climate change, each varies in the degree of assistance that it requires to become developed and diffused. Some require substantially further research and development, while others just need a market incentive.97 Either way, it is quite clear that intellectual property rights are a key to the solution in light of the influence it has on research and development as well as market incentives.98 C. Intellectual Property Impacts Green Technology Intellectual property laws have a distinct role in shaping both the development of technology in general as well as green technology.99 However, the precise extent intellectual property rights shape the development of and diffusion of green technology is not entirely clear because few comprehensive studies have been conducted assessing the impact intellectual property rights have on the various categories of clean technologies.100 In fact, due to the nature of the issue, it would be a difficult, if not an impossible, task to ascertain in empirical terms, the extent to which intellectual property rights have hindered (or encouraged) the development of and diffusion of green technologies.101 The role of intellectual property rights in shaping the development and diffusion of green technology is well recognized, as demonstrated below. So far, the approach has resulted in both positive strategies102 aimed to encourage the development of green technology and negative strategies103 to prevent the development of environmentally unfriendly technology. D. Strategies 1. Positive Strategies The underlying and most apparent reason why intellectual property has a bearing on the development and diffusion of green technology is quite simple: research and development will only be procured on a meaningful level if there are financial incentives to do so.104 Intellectual property rights provide these incentives. The Intergovernmental Panel on Climate Change put it succinctly: Technology research and development (R&D) are important for altering the emission trends shown in the previous sections. In the absence of measures fostering the development of climate-friendly technologies and/or a lack of incentives for their deployment, however, it is not a priori obvious in which direction R&D will influence emissions. Because of the longevity of energy infrastructures (lock-in effect), it is the near-term investment decisions in the development, deployment and diffusion of technologies that will determine the long-term development of the energy system and its emissions (Gritsevskyi and Nakicenovic, 2002). Generally speaking, it would be economically impossible without technology research, development, demonstration, deployment and diffusion (RDDD&D) and induced technology change (ITC), to stabilize GHG concentrations at a level that would prevent dangerous anthropogenic interference with the climate system. Government support is crucial at the development stage, but private investment will gradually replace the former for deployment (creating necessary market transformation) and for diffusion (successful market penetration).105 In short, intellectual property laws provide a guarantee to technology developers (which may include government research programs,106 private companies, as well as universities which normally collaborate with the private sector and bring their innovations to the industry through technology transfer)107 that their investment in developing technology will result in guaranteed rights to exploit them exclusively and rights to prevent others from using their technology without authority. Works and inventions may be created by the “talented” in circumstances where the work or invention did not come about with a view for financial gain. However, it is well accepted that businesses drive innovation,108 and a good portion of intellectual property is produced as a result of financial investment.109

While there is consensus that carbon-based energy sources will continue to meet the vast majority of the world’s energy needs for years to come, it is also clear that major breakthroughs across a range of clean energy technologies are essential to reconcile finite natural resources with seemingly infinite global energy demand. According to the U.S. Energy Information Administration (EIA), world energy consumption will increase by 44 percent by 2030, and the largest projected demands come from non- OECD countries where energy infrastructures are underdeveloped and the need for efficiency is paramount. Domestically, a national consensus is emerging that the U.S. must lead in the development and deployment of clean and efficient new sources of energy. It is clear that the nations of the world are responding to the clean energy challenge. Brazil has a National Action Plan on Climate Change; India has established a National Enhanced Energy Effi ciency Mission, and China is working on a set of indigenous innovation policies designed to stimulate development of a green technology program within China. Significant investments are being made in both the public and private sectors toward clean energy research. According to the World Economic Forum, global private sector spending on clean technology was $142 billion in 2008. Not surprisingly, the intellectual property system is playing a key role in clean tech innovation. As might be expected, clean tech patent filings are rising apace with increases in investment. And in clean tech innovation, patents are fulfilling their traditional role of incentivizing investment, mitigating investment risk, facilitating the sharing and transferring of technology through licensing, and enhancing collaboration. The outlook for clean technology innovation and commercialization is bright, and the U.S. has a unique set of talents and capabilities, including our IP system. It is clear that the IP system supports rather than undermines the development and deployment of clean technologies, and facilitates technology transfer to other nations. Our commitment to the IP system as a key element in our innovation system will continue to be tested, however, as others seek to promote their own competitive advantage by weakening ours.

The objective of patent rights is to foster innovation and economic growth. However, to date, there is little robust evidence that patents “work”. Here, we applied a difference-in-differences strategy to study the impact of changes in patent rights within panels of up to 54 manufacturing industries in up to 72 countries between 1981-2000. We found that stronger patent rights were associated with faster growth among more patent-intensive industries. During 1991-95, for an industry with average patent intensity, a one standard deviation increase in patent rights (equivalent to an increase from Hong Kong to Australia) was associated with an increase in growth of 0.69% points, or almost a fifth of the average industry growth rate of 3.7%. The effect of patent rights on growth became stronger in the 1990s than in the 1980s. Patents “worked” through both encouraging factor accumulation and technical progress. Our findings were robust to alternative measures of both patent rights and patent intensity, specification of the growth equation and sample, and controls for various possible confounds, including financial development, trade openness, and human capital.