Stanford Technology Law Review

The Stanford Technology Law Review (STLR) strives to present well-rounded analyses of the legal, business, and policy issues that arise at the intersection of intellectual property law, science and technology, and industry. STLR publishes exclusively online, providing timely coverage of emerging issues to its readership base of legal academics and practitioners. As of the Spring of 2015, all articles published by STLR are peer-reviewed prior to acceptance.

Current Issue

Volume 19, Issue 1



In patent-infringement litigation, if no established royalty for the patent in suit has emerged from multiple market transactions at a readily observable price, then the finder of fact needs to infer a reasonable royalty from the many factors identified in the Georgia- Pacific framework. The well-recognized problem with the Georgia-Pacific framework is that it poses many potentially relevant questions but does not say how the finder of fact should weight the answers. The case law offers no algorithm or decision tree for the finder of fact to follow. Courts find expert testimony inadmissible if it does not apply intellectually rigorous economic methods and principles to the facts and data of the case to produce results that are replicable and falsifiable. With modest effort, and without repudiating existing precedent, the courts can make the Georgia-Pacific framework far more coherent, predictable, and intellectually rigorous. From an economic perspective, that framework ultimately leads the finder of fact, first, to determine the gains from trade—which economists call “surplus”—arising from a hypothetical, voluntary negotiation between a willing licensor and a willing licensee just before the moment of first infringement and, second, to divide that surplus between the licensor and licensee according to their relative bargaining power. For brevity and clarity, I call these two culminating steps the surplus-division principle. This principle is more reliable than purporting to set a reasonable royalty on the basis of a mathematical theory (such as the Nash bargaining solution) that is too abstract to fit the facts and data of the case. It is also more reliable than an expert’s idiosyncratic and nonfalsifiable claim to have balanced the totality of the circumstances in light of his professional experience. In contrast to both a theoretical black box and an expert’s ipse dixit, the surplus-division principle uses elementary principles of microeconomics to give coherence to the Georgia- Pacific factors that courts have already defined and applied. The result enables the finder of fact to determine a licensor’s minimum willingness to accept and a licensee’s maximum willingness to pay for the patented technology, and thereby to define the bargaining range for a hypothetical negotiation. This method is robust across different factual scenarios and multiple defendants.
  • October 2015
  • 19 Stan. Tech. L. Rev. 1
  • Article


We have entered an era in which computers are not just crunching numbers but generating works of a sort that have historically been protected as “creative.” Indeed, at least one company is claiming (satirically, it appears) that its computers are already in the process of generating essentially all possible creative text—the modern-day equivalent of Emile Borel’s army of typing monkeys randomly reproducing the complete works of Shakespeare. The march of automation into fields historically dependent on human ingenuity raises important questions about the extent to which materials developed without human intervention deserve protection under our intellectual property laws. The coming wave of computer-generated material is on a collision course with our patent laws. At least one new company is already using brute-force computing power (not satirically, it appears) to mechanically compose text for thousands of patent claims covering potentially novel inventions and also to generate defensive publications designed to prevent others from obtaining competing patent protection. This Article considers whether technologies invented by such techniques should be patentable, and, if so, who exactly should be credited with inventorship. Additionally, the Article examines the extent to which publication of computer-generated content should be treated as prior art and allowed to prevent others from obtaining patent protection on independently created inventions.
  • October 2015
  • 19 Stan. Tech. L. Rev. 32
  • Article


Quantitative analysis of patent behavior is critical, as congressional and regulatory agencies consider the impact of patent trolling on modern markets. Anecdotal evidence has suggested that “non-practicing entities,” also known as “patent trolls,” specifically target companies for lawsuits, licensing demands, or other monetization activity as firms approach or complete major funding events, such as their initial public offering (IPO). To test this narrative, we survey in-house legal staff at companies that have recently gone public about their exposure to patent demands surrounding their first round of venture capital funding and their IPO. The study is one of the first attempts at providing quantitative insight into this potential strategic behavior both in and out of the courtroom. We find evidence supporting extensive patent demand activity near IPOs, one of the most public and vulnerable periods of a company’s development. A significant proportion of recently public companies received patent demands either shortly before or after their IPO, with the majority of this activity originating from non-practicing entities. The effects are especially pronounced for information technology companies. Our results are yet another indication that patent assertion activity is driven by issues other than the merits of individual patent claims.
  • October 2015
  • 19 Stan. Tech. L. Rev. 52
  • Article

Latest Online

Volume 18, Issue 2

COPYRIGHT’S TECHNOLOGICAL INTERDEPENDENCIES.................................. 189 Clark D. Asay THE CRIMINAL COPYRIGHT GAP ................................................................... 247 Eldar Haber MISAPPROPRIATION AND THE MORALITY OF FREE-RIDING........................... 289 Michael E. Kenneally INTELLECTUAL PROPERTY INFRINGEMENT AS VANDALISM .......................... 331 Irina D. Manta & Robert E. Wagner ... Read more about Volume 18, Issue 2

  • June 25, 2015
  • 18 Stan. Tech. L. Rev.