Richard Epstein and Harry First answer email questions about the Microsoft CFI decision here.  The answers predictably provide very different perspectives on the merits of the decision and its likely impact on consumer welfare.  HT: Chicago Law Blog.

Along with my Lewis & Clark colleague, Joe Miller, I have organized a conference on the patent law doctrine of obviousness following the Supreme Court’s KSR case last term.  It’s a great line-up of participants, and should be an excellent conference.  You can find details here.  Here’s the program:

Friday October 5 and Saturday October 6, 2007
Wood Hall, Room 8
Lewis & Clark Law School
10015 SW Terwilliger Boulevard
Portland, OR 97219

FRIDAY

8:00 a.m. Registration and Continental Breakfast

8:30 a.m. Welcome and Introduction

Lisa LeSage Associate Dean and Director of Business Law Programs
Robert Klonoff, Dean of Lewis & Clark Law School

8:45 a.m. Morning Session I - Law
Panelists:
Gregory Mandel, The Nonobvious Problem
John Duffy, Temporal Considerations in Nonobviousness Analysis
Rebecca Eisenberg, Pharma’s Nonobviousness Problem

Commenter:
Rochelle Dreyfuss

10:15 a.m. Break10:30 a.m. Morning Session II - Economics
Panelists:
Suzanne Scotchmer, Nonobviousness, Options and the Scarcity of Ideas
Scott Stern, The Strategic Impact of Patent Office Standards
Vincenzo Denicolo, The Nonobviousness Requirement with Complementary Innovations

Commenter:
Michael Katz

Noon Lunch
Keynote Speaker - Kevin Rivette
Mr. Rivette is currently the Chairman of the USPTO Public Patent Advisory Committee. He recently served as IBM’s Vice President of Intellectual Property Strategy.

1:15 p.m. Afternoon Session I - Psychology
Panelists:
Keith Sawyer
Colleen Seifert, Now Why Didn’t I Think of That? The Cognitive Processes That Create the Obvious,
Steven Smith, Invisible Assumptions and the Unintentional Use of Knowledge and Experiences in Creative Cognition

Commenter:
Janet Davidson

2:45 pm Break3:15 pm Afternoon Session II - R & D Perspectives
Panelists:
Mark Blaxill, Senior Partner & Managing Director, Boston Consulting Group
Ian Harvey, Chairman, Intellectual Property Institute (UK)
Damon Matteo, Vice President for Intellectual Capital Management, Xerox PARC
Kevin Rivette, Chairman, USPTO Public Patent Advisory Committee

Moderator:
Andy Culbert, Associate General Counsel, Microsoft Corp.

4:30 pm Reception

SATURDAY8:30 am Continental Breakfast

Commenter:
Robert Merges

10:30 am Break10:45 am Roundtable Discussion

A pair of interesting antitrust appellate decisions have been released over the past few days involving single firm conduct and Section 2: Cascade Health Solutions v. PeaceHealth (9th Cir.) and Broadcom v. Qualcomm (3rd Cir.).

First, the Ninth Circuit’s decision in Cascade Health Solutions v. PeaceHealth reversed the district court’s Lepage’s based jury instruction in a multi-product bundled discount case and adopted (largely) the AMC recommendation for evaluating such cases.  The AMC Report and Recommendation argued in favor of the following test:

Courts should adopt a three-part test to determine whether bundled discounts or rebates violate Section 2 of the Sherman Act. To prove a violation of Section 2, a plaintiff should be required to show each one of the following elements (as well as other elements of a Section 2 claim): (1) after allocating all discounts and rebates attributable to the entire bundle of products to the competitive product, the defendant sold the competitive product below its incremental cost for the competitive product; (2) the defendant is likely to recoup these short-term losses; and (3) the bundled discount or rebate program has had or is likely to have an adverse effect on competition.

The Ninth Circuit adopts the first prong of this “discount attribution” test but views the second and third prongs as unnecessary because short-term losses are not necessary in a multi-product discount scheme and because it views the third prong as duplicative of the antitrust injury requirement imposed on private plaintiffs generally. 

A few quick reactions on PeaceHealth.  First, the Ninth Circuit’s rejection of the LePage’s standard is an unequivocally good thing and worthy of applause in its own right.  Second, most commentators agree that there are problems with the AMC standard but its widespread adoption would represent significant improvement over Lepage’s.  Third, the Ninth Circuit decision here may be sufficient to produce a circuit split on this issue and persuade the SCOTUS (which has proven its willingness to tangle with tricky antitrust issues) to grant certiorari sooner rather than later.  Fourth, the Ninth Circuit rejected the Ortho standard (which examines whether the plaintiff was an equally efficient producer of the competitive product but could not operate profitably because of the defendant’s pricing) in favor of the “hypothetical” equally efficient competitor standard partially on the grounds that the Ortho rule “might encourage more antitrust litigation than is reasonably necessary to ferret out anticompetitive practices” and was therefore in tension with the Supreme Court’s teachings in Twombly.  Fifth, I must admit that I’ve always had a conceptual problem with the idea that a firm producing goods A & B could exclude a hypothetically equally efficient competitor who was only producing A.  If the rival firm was truly equally efficient, why not produce both goods or for that matter contract with another competitor to produce a bundle?  Sounds like a rather fragile hypothetical rival to me.  And last but certainly not least — it should be noted that TOTM’s own Thom Lambert’s work on bundled discounts is cited throughout the opinion.  Good work Thom!  Of course, they could have also cited your excellent blog posts on the topic!  See, e.g., here here and here.

The second appellate decision is Broadcom v. Qualcomm (WSJ story here).  The Third Circuit overruled a decision from district court in New Jersey granting Qualcomm’s motion to dismiss Broadcom’s antitrust claims (amongst others).   Broadcom did not appeal the rulings on its tying and exclusive dealing claims, but argued that the district court erred in dismissing the monopolization and attempted monopolization counts under Section 2 based on its allegations of abuse of the standard setting process (the Third Circuit also dismissed Broadcom’s monopoly maintenance claim due to lack of standing). 

The heart of the case involves Broadcom’s allegations that Qualcomm promised to license its patents on FRAND terms in order to be included in the UMTS standard and reneged on those promises after its technology was included in the standard, i.e. a “patent hold-up” case.  The Court discusses the FTC actions in Dell, Unocal and Rambus and relies on this set of cases for the proposition that “deceptive conduct” of this type could constitute exclusionary conduct under Section 2 (and Section 5 of the FTC Act).  The key issue was whether Broadcom had stated actionable anticompetitive conduct by alleging that Qualcomm deceived the standard setting bodies into adopting the UMTS standard by commiting to license its WCDMA technology on FRAND terms and subsequently demanding non-FRAND royalties.  Here’s the key paragraph:

We hold that (1) in a consensus-oriented private standard-setting environments, (2) a patent holder’s intentionally false promise to license essential proprietary technology on FRAND terms, (3) coupled with an SDO’s reliance on that promise when including the technology in a standard, and (4) the patent holder’s subsequent breach of that promise, is actionable anticompetitive conduct.

This is a very interesting addition to the “abuse of standard setting” jurisprudence that is beginning to develop and seems to require either deception or an intentionally false promise to license on FRAND terms as part of a “hold up” strategy.  The WSJ story reports that Qualcomm claims to be pleased with the ruling because only two of eight of Broadcom’s claims remain.  Given that the two remaining claims are Section 2 claims with the possibility of treble damages, I am somewhat skeptical of that claim.

As you may know, this past Friday we (Geoff and Josh) organized the inaugural GMU/Microsoft Conference on the Law and Economics of Innovation. Overall, we were extremely pleased with our first entry in this conference series, The Regulation of Innovation and Economic Growth. We had about 130 register for the conference, including many high level FTC and DOJ officials, academics, and industry representatives. In the end we had about 95 attendees. We also hosted a dinner for about 45 Washington VIPs (several FTC folks, a federal judge, prominent attorneys, representatives from USTR and Commerce, etc.) the evening before at Citronelle. A good time and good conversation were had by all.

The conference started off on the right foot with an opening address from Bob Cooter (Berkeley Law) which pointed to institutional and legal solutions to the “double trust problem” in innovation as a primary factor in unleashing entrepreneurial forces in countries facing high levels of poverty and stagnant growth. The basic point was that various institutions—including importantly IP laws—serve to facilitate the essential melding of ideas and capital necessary to promote innovation and to encourage economic growth. The talk was derived from a book Cooter is currently writing (with Hans-Bernd Schaefer), two draft chapters of which are available here.

The three subsequent panels discussed the innovative process & bundling in technology markets, IP Reform, and Antitrust Regulation of Innovation. The papers are available here. We both took notes on the presentations and share some reflections on the papers and discussions below the fold.

(more…)

David Fischer brings my attention to testimony on HB 1902 which would prohibit “payment for delay” settlements between brand name and generic drug companies.  FTC Commissioner Leibowitz testified on the position of my new employer here.

I also learned from reading Scott Hemphill’s testimony and submission (Columbia Law), which relies upon and includes some of his excellent work documenting the characteristics of these settlements and analyzing their effects.  If you have time to read more than Scott’s 138 page submission … check out Phil Proger’s (JDRP) submission.  Here is Proger’s punchline:

I conclude (1) that reverse payments are not “reverse” and not always anticompetitive; (2) that the proposed solution is not a competitive solution at all, and is contrary to the historical role of Congress in enacting antitrust legislation and the FTC in conducting antitrust enforcement; and finally, (3) that adopting a broadly inclusive per se ban on any settlement “for value” will have unintended consequences that could actually inhibit incentives for generic entry, and may alter the balance between drug innovation and affordability that Hatch-Waxman currently embodies.  For all of these reasons, it is my view that issues raised by H.R. 1902 warrant further study. H.R. 1902 would adopt for the first time the blunt instrument of a per se antitrust rule against specific conduct in a specific industry. Such a step would be a departure for Congress, which has previously (and wisely) decreed that antitrust practices should be measured by competitive standards.

As Geoff noted the other day, The First Annual GMU / Microsoft Annual Conference on the Law and Economics Innovation is now just one week away. It will be Friday, May 4th at GMU Law from 9 am to 4pm. This year’s topic is “The Regulation of Innovation and Economic Growth.” Conference papers and discussion will focus on the innovative process itself and the question of how regulation, particularly antitrust and intellectual property regimes, might foster or impede growth.

Geoff and I, along with a ton of others who had a substantial role in putting this project together, truly hope that this will be the first in a long running collaboration between GMU and Microsoft which will produce a forum for academics, regulators, industry representatives, and policy makers together to discuss this important topic and present research.

As exciting as it is to have a hand in organizing the event, and as happy as I am that it will take place right there at GMU Law, the best thing about this conference is by far the quality of program that Geoff was able to pull together. I will admit to our faithful TOTM readers that Geoff deserves all the credit for this. I’m thrilled to be able to participate in one of the panels myself along with Jon Baker, Dan Spulber, and Keith Hylton — all economists whom I respect greatly and whose work I am familiar with. Here’s the entire conference agenda, which includes the following speakers, commentors, and moderators:

• Jonathan B. Baker, American University Washington College of Law
• Ronald A. Cass, Dean Emeritus, Boston University School of Law
• Robert D. Cooter, University of California at Berkeley School of Law
• Keith N. Hylton, Boston University School of Law
• Marco Iansiti, Harvard Business School
• Bruce H. Kobayashi, George Mason School of Law
• Douglas G. Lichtman, University of Chicago Law School
• Stan J. Liebowitz, University of Texas/Dallas School of Management
• Stephen E. Margolis, North Carolina State College of Management
• Randal Picker, University of Chicago Law School
• Howard A. Shelanski, University of California at Berkeley School of Law
• Daniel F. Spulber, Kellogg School of Management
• Joshua D. Wright, George Mason University School of Law

The papers, including my own, can be downloaded here.

For those of you law and economics types heading to ALEA in Boston for the weekend, there is plenty of time to join us Friday and make it to Boston on time for dinner Friday night.  Conference registration is free.  Come join us and make sure to say hello. For those of you who cannot make it, I plan on doing some “not-so-live” blogging after both the GMU/Microsoft Conference as well as ALEA over the weekend.

The tentative recommendations of the Antitrust Modernization Committee are out, and include Commissioner vote counts for various propositions. The recommendations largely take the form of propositions that the AMC Commissioners joined, did not join, or were undetermined. Here are a few that caught my eye on an initial read-through (note that 2-5 apply to merger analysis).

1. A price above marginal cost, by itself, does not suggest market power in a
   relevant antitrust market. Firms with low marginal costs but large fixed
   costs, particularly for research and development and other innovative
   activity, may need to price significantly above marginal costs simply to
   earn a competitive return in the long run.
2. No substantial changes to merger enforcement policy are necessary to account for
   industries in which innovation, intellectual property, and technological change are
   central features (Commissioner Delrahim did not join, Commissioner Valentine undetermined).
3. The agencies should increase the weight they place on certain types of
   efficiencies. For example, the agencies and courts should give greater
   credit for fixed-cost efficiencies, particularly in dynamic, innovation driven
   industries where marginal costs are low relative to typical prices (five commissioners did not join).
4. The agencies should update the Merger Guidelines to explain more
   extensively how they evaluate the potential impact of a merger on
   innovation (five commissioners do not join)
5. The agencies should update the Merger Guidelines to include an
   explanation of how the agencies evaluate non-horizontal mergers (two commissioners do not join).
6. In particular, the existing standards regarding bundling, as expressed in cases such
   as LePage’s, may prohibit conduct that is procompetitive or competitively neutral
   and thus these standards may actually harm long-term consumer welfare (Commissioner Shenefield does not join).
7. Congress should repeal the Robinson-Patman Act in its entirety (two commissioners do not join).
8. Congress should not legislatively amend Section 2 of the Sherman Act. Standards
   currently employed by U.S. courts for determining whether single-firm conduct is
   unlawfully exclusionary are generally appropriate. Although it is possible to
   disagree with the decisions of particular cases, in general, the courts have
   appropriately recognized that vigorous competition, the aggressive pursuit of
   business objectives, and the realization of efficiencies not available to competitors
   are generally not improper, even for a “dominant” firm and even where
   competitors might be disadvantaged.

There is a lot to digest in the AMC recommendations. My overall impression is that the recommendations are quite sensible all the way around. I am particularly interested in the support for guidelines on innovation and non-horizontal mergers, though there is apparently less support for the former. The 1984 Merger Guidelines may provide a hint as to what non-horizontal merger guidelines might look like, though there have been a number of developments in the economic analysis of vertical contractual restraints and mergers since then (both theoretically and empirically) and so a new set of guidelines might look very different. Guidelines for innovation mergers might be very useful in terms of transparency, but my first reaction is that I don’t know quite what they would say. While it is clear that the AMC believes that innovation effects should “count” for merger analysis, and I agree, it seems like there is still much to learn about the basic economic forces at work with mergers involving innovation effects both theoretically and empirically. All of this is putting aside issues associated with how one might engage in the necessary welfare tradeoffs that might arise between say, higher prices and greater innovation from a particular merger. It seems like there is a threshhold level of knowledge that is necessary prior to drafting a set of Guidelines committing to a particular analytical approach that is sure to influence how federal courts handle these issues.

In any event, the AMC recommendations are well worth reading and are likely to spark a good deal of discussion in antitrust circles in the coming months and years. Looking forward, it will also be interesting to compare and contrast the AMC recommendations regarding monopolization and vertical conduct (see, e.g., 6-8 above) with any consensus that emerges from the FTC/DOJ Section 2 hearings.

UPDATE: Larry has posted a very thoughtful response and overview of the debate (link below).

Larry Solum was kind enough to link to my post on economics and arguments about social justice, and raises the following concerns about my argument :

I’m not sure I really understand, but I wonder if there is a sense in this post that the normative case for equality must be cashed out in terms of “costs” or “benfits”. If so, this seems to me to miss the point of distributive justice theories (in their most sophisticated forms). Such theories do conceive of inequality as a cost–that would be to make a category mistake–confusing a deontic constraint for a consequentialist consideration. I’m certainly not accusing Ruhl or Wright of making this mistake. I just can’t quite tell what they are trying to say.

Let me attempt to clarify.

I understand that one might make an argument for regulating Apple’s business conduct, or kidney transactions, on deontological grounds. I also understand that taken on those terms, my argument that one should understand that regulatory intervention seeking to reduce inequality comes with costs (say, in terms of reducing consumer welfare) is non-responsive. Simply put, I was responding to specific claims that economics has nothing to offer in terms of the normative debate about these types of interventions because “conventional economic models are indifferent” as between any market structures that generate equivalent total revenues. In sum, I was responding to a debate that I presumed had at least some consequentalist element, i.e. would a prohibition on vertical integration in the music industry condemn vertical integration in the music industry decrease consumer welfare? (I understand that the context of the debate is especially difficult to absorb from just my post, since the discussion occurred on three different blogs!)

One way to approach this type of question is to assume that there are zero economic costs to the intervention at issue by drawing upon a “straw man” version of economic theory, i.e. no impact on consumer welfare in this example, and that therefore any costs of inequality (or anything else) justify intervention. Another method is to claim that obsolete economic models are not capable of contributing to this debate and that therefore these questions of “social justice” can only be resolved by appealing to non-economic approaches. A third way to address these issues is to take the strictly deontological approach. This is common in the kidney market debate, i.e. organ markets will commoditize, which is bad, and we should prohibit live-saving transactions in these markets in the name of this principle.

I presumed we were not talking about the third approach, rightly or wrongly (why all the talk about economics and what it has to say about the interventions if we were? Wouldn’t the right answer if that was the case be, “who cares what the consequences of the regulation will be?”). Also, antitrust has clearly adopted the consumer welfare approach rather than regulating business conduct by relying upon some other non-economic principle. In addition, the context of the posts from Madisonian should help to give context to the discussion wherein the question was under what conditions the consumer welfare metric might systematically underestimate social value, i.e. these trade-offs matter. Further, in the post I concede that there are things that economics cannot do:

“I am not claiming that economics is capable of addressing all of the social concerns that Frank seems to believe justify intervention. To the contrary, I am quite sure it cannot (and believe it should not).”

So, if we are to have a consequentalist discussion of a possible regulation of “inequality,” the idea that economics cannot contribute to the discussion is without merit. Finally, to the extent that we wish to engage in such a discussion, it makes sense to talk about actual trade-offs rather than hand waving around them. I certainly will not speak for J.B. Ruhl, but I presume that what he and I were getting at (at least on this one point) is that we should have realistic discussions about the trade-offs involved in terms of consumer welfare when we talk about attacking Apple’s business practices, or lives lost when we talk about prohibiting kidney transactions. I presume that any sensible policy discussion of antitrust or organs would want this information.

Finally, and to reiterate, if one is to have a strictly deontological conversation about any of these things, economics doesn’t have much to say. That just wasn’t the conversation we were having (at least that I was having), and it surely isn’t the conversation that occurs in antitrust (the context we were discussing). I hope this helps to clarify.

I’ve been going back and forth with Frank Pasquale both at Madisonian and Jurisdynamics about economics, consumer welfare, the costs of inequality (and regulating it), and the ability of economics to provide useful insights where “social goods” are involved. At Jurisdynamics, Frank responds to my post on Apple’s business practices by asserting that my tunnel vision focus on consumer welfare ignores important justifications for government intervention like excessive vertical integration. While I argue that the economic literature universally accepts the notion that vertical integration, in most instances, is a procompetitive practice, Frank eloquently refuses to engage in the discussion on economic terms because those terms are not sufficiently “humanistic” (anecdotally citing this guy’s refusal to express his ideas in Rawlsian terms to a group of graduate students) and then levels this attack on economic analysis:

I have no doubt that the Chicago School of economic analysis has made fundamental contributions to our understanding of “brick and mortar” goods, coffee and coffemakers, M&M’s and toothpaste. But in the realm of culture, we need a richer, more humanistic analysis. We cannot simply try to maximize “consumer welfare.”

A simple example can show the fallacy here. Imagine two societies with two different record industries. In the first, a wealthy elite buys lots of music, and industry revenues are in the billions. In the second, very little is spent on music, but there are still thousands of songs created (say, via peer production). Does society 1 automatically “win out” as welfare maximizing? If the measure is so crude as to permit that possibility, what guidance can it give us?

I offer a rather long comment in response because I think Frank’s tactic is to dismantle a straw man version of economics, and in particular, the Chicago School. You can go to Jurisdynamics to check out comment, but my basic points are that: (1) Chicago School economics (and by that, don’t we really just mean applied price theory) is not limited to “brick and mortar goods” (this idea is just silly, and I’ve never heard it before); (2) does not ignore social interactions (see, e.g. Becker and Murphy’s important book on the topic); (3) use of the consumer welfare metric in antitrust analysis is supported by folks from just about every “school” of economics that you can think of.

He returns to this theme in his post at Madisonian where he writes:

What’s interesting to note here is the indifference of conventional economic models to different licensing policies that end up generating the same amount of revenues. If, say, permissions for books are roughly $100,000 per book, and 10 books per year are published, or they are $1,000 per book, and 1,000 books per year are published, that looks about the same economically. But it makes all the difference in the world to art history graduate students, who face almost impossible odds of getting published in the first world, and a much better chance of getting their ideas out in the second.

I have a comment (or two) up in response to this idea at Madisonian, where I note that this description of economics is unrealistic, unfair (see, we economists can too talk about fairness!), and inaccurate:

I don’t know what economic models you are talking about. But I suggest that most I.O. economists would ask the following question: what economic forces lead to these different market structures? Demand for certain types of books? Are the economies of scale? Scope? What does the demand for art history books look like? Of course, shame on me for returning to the willingness to pay metric, but I think it is quite useful. It may not capture everything you are looking for, but it is not because economists are indifferent to the two different market structures in your hypothetical. Consumer welfare does not measure everything, but it measures a lot of important information about what it is that consumers value. Perhaps consumers would be willing to accept higher prices and lower quality for an increase in some unnamed social value. But I dont know because I dont know what the unnamed social value is or how to assess these trade-offs (and we are talking about trade-offs, right?).

Frank’s critique of “conventional economic models” does not describe the economics I know, and Frank’s inaccurate portrayal of economics and economic thought is starting to get a bit old (see, e.g., Kate Litvak’s comment responding to Frank’s mischaracterization of TOTM commenters as having the view “of the market as a meritocracy: that the rules governing transactions are neutral and fair, everyone bargains at arm’s length, etc,” or his claim that economists do not recognize pecuniary externalities in this post (which also claims to identify a fundamental flaw in Hayek’s “The Use of Knowledge in Society” that has something to do with inelastic demand or buying power and perhaps both).

Note that I am not claiming that economics is capable of addressing all of the social concerns that Frank seems to believe justify intervention. To the contrary, I am quite sure it cannot (and believe it should not). But the claim that economics is indifferent to market structures is something that any undergraduate economics student knows is wrong. To the extent that a policy of maximizing social welfare (in the economic sense), or consumer welfare, carries an opportunity cost of decreasing “social justice” (let’s just call it that for now), that’s fine. We can talk about the trade-offs. But as J.B. Ruhl notes in his comment to Frank’s post at Jurisdynamics:

I need to know what we are getting in return before I can say whether the “costs of inequality” are, when all is taken into account, actually costs or benefits, and I need to know the effects of regulating some particular manifestation of the inequality before I know whether it produces a net gain or loss.

Exactly! And this is why it is so important that we confront the trade-offs head on rather than taking the straw man approach. The mistaken assertion that economics has nothing to say about different market structures, and the economic forces that get us there, might lead one to incorrectly conclude that the cost of regulating some “particular manifestation of the inequality” are zero in economic terms. I’m all for discussing the competitive consequences of regulatory efforts as agents re-optimize and respond to incentives. But keeping the discussion realistic will only improve our ability to make sound policy choices.

There is a very interesting development in the ongoing saga of the FTC v. Schering-Plough Corporation, a very important antitrust case involving a payment from a branded pharmaceutical manufacturer to a generic to delay entry (a “reverse payment”). The interesting development is that the FTC, who offered a brief in favor of cert., has now also filed a supplemental brief in response to the DOJ’s brief recommending denial of cert. The excellent Antitrust Review blog has been all over this, and has posted copies of the FTC and DOJ briefs (see also Patently-O).

Does anyone know of another example of an inter-agency conflict of this nature between the FTC and Solicitor General on an antitrust issue?

As anticipated, the White House has announced that GMU’s Kimberly Moore has been nominated to the Federal Circuit.  Congratulations, Professor Moore!

It has been a fine month for George Mason University. The Final Four appearance has attracted a good deal of media attention and general buzz. This week, I received a record number of phone calls from friends about Mason (”No, I dont have any extra Final Four tickets.”). As great as this news is for the university community as a whole, GMU Law had an eventful March in its own right. For what it is worth, we moved up a few (4) spots in the US News Rankings to 37 (Brian Leiter thinks we are still underrated). But I want to write about what I found to be a very interesting series of events following reports that a GMU Law faculty member would be nominated to the Federal Circuit Court of Appeals.

A week ago, the San Francisco Daily Journal reported that my friend, colleague, and prolific patent scholar Kimberly Moore would receive the nomination to the Federal Circuit Court of Appeals. The headline of the article, available here (HT: How Appealing), “Judge Whyte Passed Over for Circuit,” did not convey much enthusiasm for Moore’s rumored nomination (the article does contain favorable reactions from IP scholar Mark Lemley and practitioner James Pooley). The WSJ Law Blog also picked up the DJ story, which was essentially that while “Moore seems well-credentialed,” “the news comes as a disappointment to intellectual property lawyers.”

The blogosphere reaction to the initially lukewarm reports has been enthusiastic, approving, and very interesting to watch. Since the initial rumor broke, here is a survey of reactions from law bloggers:

Christine Hurt, of The Glom:

I only met Prof. Moore for the first time this Fall, so I’m glad I’ll be able to say “I knew her when.” Lattman, who does not seem to have had the pleasure, seems conservative in extolling her virtues, so we will do so here at the Glom. Congratulations on your well-deserved nomination!

Dennis Crouch, of Patently-O:

I commented yesterday to a reporter my belief that Professor Moore is an obvious choice and would make an excellent judge.

Crouch also notes that John Duffy, whose name had also been mentioned for the Federal Circuit position described Moore as “outstanding nominee,â€? who “has spent a large portion of her career carefully studying the judicial process of patent litigation, and she has become a leading authority in the field. She would bring extraordinary knowledge and insight to the bench. Her nomination would, I think, command broad support from the academy and the practicing bar.â€? I do not know where the Duffy comment appears.

Finally, Mike Madison of Madisonian.net notes in response to the Law Blog story:

It doesn’t report that a lot of IP faculty are (or should be) pleased. Nothing against Judge Whyte, who is an experienced federal and state court judge. But Professor Moore is an especially accomplished, thoughtful, and constructive critic of the patent system. Congrats!

Perhaps this is another example of what Larry Ribstein has described as the “decentralized knowledge” function of blogging, where specialized expert knowledge can quickly be disseminated to the public at low cost in order to fill gaps in the information disseminated by mainstream media sources?

I might as well finish off with a Final Four note. As expected, the MSM’s reaction to Mason’s other big news has also been lukewarm. I have only been able to find one expert predicting a Mason victory over Florida in tomorrow night’s action (though I am sure there are others): Andy Glockner, an editor for ESPN.com, is picking the Patriots over the Gators. I wonder what Billy Packer thinks? Of course, Vegas has also spoken, and Florida is favored by 6 at the moment. Lucky for these Patriots, the “W’s” only get handed out after the game is played.