As the 118th Congress drew to a close at the end of 2024, there was a spate of intellectual property activity on Capitol Hill. I was fortunate enough to be part of one of these exciting events. On December 18, 2024, the IP Subcommittee of the Senate Judiciary Committee held a hearing on the RESTORE Patent Rights Act. I was one of four witnesses testifying at that hearing, alongside fellow professor Jorge Contreras. The other two witnesses were Jacob Babcock, CEO of NuCurrent, and Joshua Landau, Senior Counsel, Innovation Policy, at the Computer & Communications Industry Association (CCIA). Video of the hearing is available here. My written testimony is also published.
In addition to the hearing on the RESTORE Patent Rights Act, the Senate Judiciary Committee also voted to advance the PREVAIL Act to the full Senate in November 2024. The PREVAIL Act addresses a number of abuses plaguing PTAB proceedings. In addition to RESTORE and PREVAIL, other IP-related bills were introduced last Congress, including the PERA Act to clarify patent-eligible subject matter. All of these activities gave hope that Congress was ready to fix issues that interfered with innovators being able to obtain and enforce effective and reliable patent rights. As 2025 began and the new Congress was sworn in, patent advocates wished for them to pick up where the 118th Congress left off.
Thankfully, we did not have to wait long. On February 25, 2025, Senators Coons and Cotton and Representatives Moran and Dean re-introduced the RESTORE Patent Rights Act, which provides a presumption of injunctive relief when a patent is found to be valid and infringed. This bill fixes a string of events that began with the Supreme Court’s 2006 decision in eBay v. MercExchange that has led to not just fewer injunctions being granted, but also fewer companies even seeking injunctive relief. (See article by Dr. Kristina M.L. Acri née Lybecker.) Because a patent only provides the right to exclude, if a patent owner cannot obtain an injunction, the patent loses much of its value. The presumptive injunction of the RESTORE Act would, as the name suggests, restore a patent’s exclusive right, as well as its value.
A Message from Faculty Chair Mark Schultz and Executive Director Joshua Kresh
Dear Friends of the Innovation and Creative Industries,
We’re excited to announce the launch of IPPI: The IP Policy Institute at The University of Akron School of Law. While our name is new, our team, mission, and commitment to great IP scholarship and policy work are very familiar.
Who We Are: IPPI emerges from the former C-IP2 team at George Mason University, bringing together familiar faces and new additions:
Professor Mark Schultz, original co-founder of C-IP2/CPIP, returns as Faculty Chair
Joshua Kresh continues as Research Professor and Executive Director
Professor Emily Michiko Morris joins as Associate Faculty Chair
Our dedicated and talented professional staff remains intact, ensuring operational continuity
We welcome Douglas Park as our new in-house Research Fellow
Continuing Our Mission: At IPPI, we remain committed to fostering rigorous, fact-based scholarship that examines IP’s vital role in promoting innovation and creativity. Our extensive network of scholars and supporters continues to be the foundation of our work.
Looking Forward: We’re hitting the ground running with a robust slate of programs:
The Edison Fellowship program continues uninterrupted
Academic roundtables and policy-focused events (details coming soon)
A special Winter Institute conference in Orlando next February
Expanded research initiatives and policy engagement in Washington DC
A newly launched global scholars’ network and international policy initiatives
Work Already Underway: We’ve enclosed our Spring Progress Report, highlighting the impressive work completed by our network. While this would have been the final C-IP2 report, it represents the ongoing scholarship and engagement that will continue under IPPI.
Join Us on This Journey: As we embrace this new chapter, we’re not just continuing established programs—we’re open to new ideas and collaborations. We welcome conversations with anyone interested in partnering with IPPI.
We value your continued engagement as we build on our strong foundation. Please reach out with any questions or ideas.
Best regards,
Joshua Kresh
Research Professor & Executive Director Jkresh@uakron.edu
IPPI: The IP Policy Institute
The University of Akron School of Law
Washington, D.C.
IPPI Spring 2025 Progress Report
(December 2024 – February 2025)
IPPI Hosted & Co-Hosted Events*
*These are events either hosted or co-hosted by the members of the IPPI team and our affiliates from December 2024 through February 2025.
Thomas Edison Innovation Law and Policy Fellowship**
On January 15-17, members of the IPPI team hosted the third and final meeting of the 2024-2025 Fellowship. The Edison Fellows presented substantially revised drafts of their research papers and received feedback from Distinguished Commentators and other Fellows before submission to journals.
**The Thomas Edison Innovation Law and Policy Fellowship is a program now being organized by the IPPI team at The University of Akron.
Roundtable on Intellectual Property and High-Tech Policy
On February 12, members of the IPPI team hosted a roundtable on IP and high-tech policy in Arlington, VA. Academics, legal and industry professionals, and policymakers discuss topics such as “IP & the ITC,” “Access to Infringement Litigation,” “Remedies & Patent Infringement,” and “Antitrust & IP in the New Administration.”
News & Speaking Engagements*
*These are news and speaking engagements for the members of the IPPI team and our affiliates from December 2024 through February 2025.
Welcome to the IPPI team’s new Affiliates!
IPPI Economist
Dr. Alexander Raskovich (IPPI Senior Economist)
IPPI Scholars
Michael Goodyear (IPPI Scholar; Acting Assistant Professor, New York University School of Law; Fellow, NYU Law’s Engelberg Center on Innovation Law & Policy; 2023-2024 Edison Fellow)
“After a wonderful experience researching the evolution of copyright doctrine in response to new technologies as an Edison Fellow last year, I am excited to continue working with [IPPI] as a Scholar!”
Professor Michael D. Murray (Spears Gilbert Associate Professor of Law University of Kentucky)
Says Professor Murray, “I am very happy to be named a “Scholar” of the [IPPI]. I have enjoyed participating in their conferences and roundtable discussions. [IPPI] always does an excellent job bringing industry experts into contact with academics to enrich the discussion and broaden the perspectives expressed on the critical IP topics of the day.”
Dr. Nicola Searle (IPPI Scholar; Reader (Associate Professor), Institute for Cultural and Creative Entrepreneurship (ICCE), Goldsmiths, University of London; 2023-2024 Edison Fellow)
2021-2022 Edison Fellow Molly Torsen Stech’s articleCopyright Thickness, Thinness, and a Mannion Test for Images Produced by Generative Artificial Intelligence Applicationswas selected for INTA’s special AI Issue (November-December, 2024).
On December 12, IPPI Advisory Board Members the Hon. Paul R. Michel and the Hon. Susan G. Braden (Ret.) (also IPPI Jurist in Residence) joined other judges in signing and submitting an amicus brief in support of the appellant, urging reversal, in The Hon. Pauline Newman v. The Hon. Kimberly A. Moore, et al.
On December 12, IPPI Advisory Board Member the Hon. Andrei Iancu spoke at the hybrid Hudson Institute event “What’s Ahead for Innovators and Creators in the New Trump Administration?”( event recording is available via link).
Congressional Testimony
On December 18, Mark Cohen (IPPI Senior Fellow for China IP) testified before the House Judiciary Committee in its last session on “IP and Strategic Competition with China”; this last hearing was on “Patents, Standards and Lawfare.” Mr. Cohen was the only person to testify twice before this committee during the two years in which it was holding hearings on IP and Strategic Competition with China. A video of the hearing is available on the hearing webpage, and Mr. Cohen’s written testimony is also available online.
Also on December 18, Professor Kristen Osenga (IPPI Senior Fellow for Innovation Policy) testified before the U.S. Senate Committee on the Judiciary Subcommittee on Intellectual Property’s Hearing “Time Change: The RESTORE Patent Rights Act: Restoring America’s Status as the Global IP Leader.” A video of the hearing is available on hearing webpage, along with Professor Osenga’s written testimony.
On January 22, The Well News published the commentary post “A Reality Check for Patent Quality Critics” by the Hon. Andrei Iancu and the Hon. David Kappos, Co-Chairs of the Council for Innovation Promotion (C4IP) and Members of IPPI’s Advisory Board. The piece cites the Sunwater Institute’s September 2024 policy reportPatent Quality in the United States: Findings and Suggestions for Policymakers, co-authors of which include 2022-2023 Edison Fellows Dr. Ani Harutyunyan and Dr. William Matcham.
Media Mentions: October 2023 and 2024 IP conferences in Arlington, VA—run by members of the current IPPI team—were mentioned in several recent articles:
December 11 Fox News article on Judge Pauline Newman mentions the Judge’s delivering remarks for the October 2023 conference.
The conference was mentioned in Forbes December 6 article “Litigation Financing: A National Security Threat Or Lifeline For Startups?” by Dr. Christine McDaniel of the Mercatus Center at George Mason University
* * *
Dr. Kristina M. L. Acri, née Lybecker (IPPI Senior Scholar; John L. Knight Chair of Economics and Professor of Economics, Colorado College)
Participated in February 12 roundtable on Intellectual Property and High-Tech Policy hosted by members of the IPPI team in Arlington, VA
Jonathan Barnett (IPPI Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)
In December, was mentioned as a speaker on “The Inevitable Consequences of Misguided Innovation Policy” as part of IPWatchdog LIVE 2025 event in March
Participated in February 12 roundtable on Intellectual Property and High-Tech Policy hosted by members of the IPPI team in Arlington, VA
Discussed his book The Big Steal: Ideology, Interest, and the Undoing of Intellectual Property (Amazon | SSRN) for the virtual February 13 Hudson Institute event “The Big Steal: Big Tech’s Theft of Intellectual Property” (a recording of the event is available on the Hudson Institute’s webpage for the event)
Chief Judge Susan G. Braden (Ret.) (Court of Federal Claims (Ret.); IPPI Jurist in Residence)
Was mentioned in PatentDocs’ January 7 blog post “Enough is (Apparently) Enough – Part IV”
Daniel R. Cahoy (IPPI Senior Scholar; Robert G. and Caroline Schwartz Professor & Chair of the Risk Management Department, The Pennsylvania State University’s Smeal College of Business)
Recent article, Trademark’s Grip over Sustainability (94 Colo. L. Rev. 1041 (2023)), was selected for inclusion in the list of top 20 articles selected for the 2025 Environmental Law and Policy Annual Review (ELPAR), a joint publication of the Environmental Law Institute’s Environmental Law Reporter and Vanderbilt University Law School
In December, moderated a fireside chat between Karyn Temple (SEVP and Global General Counsel, MPA) and Deborah Lashley-Johnson (Acting Director, IP Attache Program, USPTO) at a summit co-hosted by the USPTO and the MPA’s Alliance for Creativity and Entertainment
Theo Cheng (IPPI Practitioner in Residence; Arbitrator and Mediator, ADR Office of Theo Cheng LLC; Adjunct Professor, New York Law School)
On January 22, gave an online presentation to the Mediation Committee of the New York State Bar Dispute Resolution Section entitled “Bracketing in Negotiations and Mediations”
Eric Claeys (IPPI Senior Fellow for Scholarly Initiatives & Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)
On January 15-17, co-led in the virtual third and final meeting of the 2024-2025 Edison Fellowship
Mark Cohen (IPPI Senior Fellow for China IP & Scholar)
In early November, former USPTO Director the Honorable David Kappos, retired CAFC Chief Judge the Honorable Randall R. Rader, and Mr. Cohen filed an amicus brief in the TCL v Access Advance remand case before the Shenzhen Intermediate Court in China. The brief argues that the Supreme People’s Court of China misconstrued how patent pools work in licensing standardized technology in its assumption that pools necessarily owned the underlying patents and were therefor subject to the jurisdiction of the Chinese courts for violations of FRAND obligations (read more). An article in Law 360 by the three authors of the amicus brief in TCL v. Access Advance in China is forthcoming.
Was interviewed for December 12 Intellectual Assets Magazine (IAM) piece “US-China IP Relations Under the Microscope Ahead of Trump 2.0,” as well as being interviewed with others for second, December 18 piece “Potential US-China hostility under Trump ramps up risk for trade secret owners” (links may require subscription for access)
On December 13 (Japan time), spoke before Keio University, Japan, as part of a symposium on “Future of US-Asia/World Economic Relationships after 2024 Elections”
On December 18, testified before the House Judiciary Committee in its last session on “IP and Strategic Competition with China”; this last hearing was on “Patents, Standards and Lawfare.” Mr. Cohen was the only person to testify twice before this committee during the two years in which it was holding hearings on IP and Strategic Competition with China. A video of the hearing is available on the hearing webpage, and Mr. Cohen’s written testimony is also available online.
On January 7, discussed the U.S.-China Science and Technology Agreement (STA) in a virtual panel hosted by the Quincy Institute for Responsible Statecraft
On February 2, moderated a virtual roundtable on China’s trademark law that was hosted by the UC Berkeley Center for Law & Technology (learn more)
On February 4, moderated the workshop “Has the Sleeping Dragon Woken Up? A Workshop on U.S.-China Tech Competition and Collaboration” on best practices for assessing China’s technological and scientific accomplishments. The workshop was hosted in San Francisco, CA by the Asia Society Northern California.
In February, Mr. Cohen’s comments on law firm exodus from China appeared in an article at ChinaFile
Participated in February 12 roundtable on Intellectual Property and High-Tech Policy hosted by members of the IPPI team in Arlington, VA
Loletta (Lolita) Darden (IPPI Scholar; Visiting Associate Clinical Professor and Director, Intellectual Property and Technology Clinic, The George Washington University Law School)
Along with Samantha Levin, Esq., spoke at the Washington Area Lawyers for the Arts (WALA) session “Contracts and Copyright 101 for the Film Industry: Understanding Your Rights and Creative Ownership” as part of the DC Independent Film Forum’s series of professional seminars from February 12-17, 2025
Gregory Dolin (IPPI Senior Scholar; Associate Professor of Law, University of Baltimore School of Law)
Was referenced in January 29 Patently-O patent blog post “Is Google Simply Asking for More Efficient Infringement?”
John F. Duffy (IPPI Senior Scholar; Samuel H. McCoy II Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law)
On January 15-17, served as a Distinguished Commentator for the virtual third and final meeting of the 2024-2025 Edison Fellowship
Was mentioned in February 5 UVA Law news story “New Center on Intellectual Property Prepares Students for Future of Legal Practice”
Was mentioned in February 16 Yale Journal on Regulation Notice & Comment post “Federalist Society’s National Student Symposium, 3/7-3/8: Congress: Reviving the Impetuous Vortex”
Tabrez Ebrahim (IPPI Scholar; Associate Professor of Law at Lewis & Clark Law School)
On December 15, presented “Intellectual Property Considerations for Saudi Aramco” to the Legal Department and Chief IP Counsel of Saudi Aramco at the Saudi Aramco Corporate Headquarters in Dhahran, Saudi Arabia
On December 26, presented “Introduction to Patent Law” at Jordan University of Science and Technology in Irbid, Jordan to the Faculty of Pharmacy
Gillian Fenton, Esq., CLP (IPPI Practitioner in Residence; Founder and Managing Director, LST Strategies LLC)
In December, attended a Transition Report Roundtable hosted by CSIS
In December, instructed students in Module 1 (IP Basics) and Module 2 (Licensing Basics) of the LES entry-level IP Licensing Basics course
Jon M. Garon (IPPI Senior Scholar; Professor of Law and Director of the Intellectual Property, Cybersecurity, and Technology Law program, Nova Southeastern University Shepard Broad College of Law)
In January, was appointed Associate Dean for Administration and Non-JD Programs at Nova Southeastern University | Shepard Broad College of Law, where he serves as Professor of Law and Director of the Goodwin Program for Society, Technology and the Law
In January, completed his term as chairperson of the AALS Section of Technology, Law, and Legal Education
In January, gave a presentation on “Adjusting Risk Management for AI” at the ABA Business Law Section Cyber and Technology Law Institute
In January, gave a presentation on “The Impact of Artificial Intelligence Content on Fan Fiction”
In January, served as a moderator for the AALS Section of Technology, Law, and Legal Education Works In Progress at the 2025 AALS Annual Meeting
Was mentioned in February 25 ABA The Business Lawyer Winter 2024-2025, Volume 80, Issue 1 article “Survey of the Law of Cyberspace: An Introduction to the 2024-2025 Survey”
Michael Goodyear (IPPI Scholar; Acting Assistant Professor, New York University School of Law; Fellow, NYU Law’s Engelberg Center on Innovation Law & Policy)
Dr. Ani Harutyunyan (IPPI Practitioner in Residence)
Participated in February 12 roundtable on Intellectual Property and High-Tech Policy hosted by members of the IPPI team in Arlington, VA
Justin (Gus) Hurwitz (IPPI Senior Scholar; Senior Fellow and Academic Director, Center for Technology, Innovation, and Competition, University of Pennsylvania Carey Law School)
Was quoted in USA Today’s December 20 story “Will the Supreme Court save TikTok? What’s ahead in the final legal showdown.”
Was quoted in Bangkok Post’s January 10 article “TikTok showdown reaches US Supreme Court”
Was referenced in January 21 VERIFY report “VERIFYING what a TikTok ban means for you” with contributions from the Associated Press
Steven D. Jamar (IPPI Senior Scholar; Associate Director, Institute for Intellectual Property and Social Justice (IIPSJ); Professor Emeritus, Howard University School of Law)
Joe Keeley (IPPI Practitioner in Residence; Principal, Keeley Law & Policy; Former Chief Counsel of Senate Budget and General Counsel of Senate Judiciary)
With Matthew Williams (Partner, MSK), is teaching George Mason University Antonin Scalia Law School’s Arts & Entertainment Advocacy Clinic for Spring 2025
Joshua Kresh (Research Professor & Executive Director, IPPI, The University of Akron School of Law)
Joined The University of Akron School of Law as a Research Professor and Executive Director of IPPI: IP Policy Institute
Participated in February 12 roundtable on Intellectual Property and High-Tech Policy hosted by members of the IPPI team in Arlington, VA
Erika Lietzan (IPPI Senior Scholar; William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)
On January 15-17, served as a Distinguished Commentator for the virtual third and final meeting of the 2024-2025 Edison Fellowship
Daryl Lim (IPPI Senior Scholar; H. Laddie Montague Jr. Chair in Law; Associate Dean for Research and Innovation; Founding Director, Intellectual Property Law and Innovation Initiative; and co-hire, Institute for Computational and Data Sciences, Penn State University)
Was mentioned in PSU’s December announcement “BBC Interviews Associate Dean Daryl Lim on Tech and Trump 2.0”
Article Trademark Confusion Revealed: An Empirical Analysis was selected for INTA’s special AI issue
Was mentioned in PSU Dickinson Law’s December story “Trademark Reporter Selects Associate Dean Daryl Lim’s Article for Special AI Issue”
Was quoted in PSU Law’s January announcement “Associate Dean Daryl Lim Featured in Reuters Commentary on Apple Siri Privacy Settlement”
On January 29, engaged in a Q&A with Penn State’s Institute for Computational and Data Sciences, “Q&A: Can AI be governed by an ‘equity by design’ framework?”
Was mentioned in The Debrief’s February 11 post “AI Governance Through ‘Equity by Design’ Is Needed to Protect Marginalized Communities, Expert Warns”
On February 21, spoke on the panel “The Clash of AI Competition and Copyright Law” at the George Mason University Antonin Scalia Law School Law & Economics Center’s 28th Annual Antitrust Symposium
Irina D. Manta (IPPI Senior Scholar; Professor of Law, Hofstra University School of Law)
Was mentioned in February 14 Hofstra Law News story “Prof. Irina Manta Discusses Lawsuit Against AI Company for Alleged Copyright Infringement” (full story on Newsday)
Emily Michiko Morris (IPPI Associate Faculty Chair, Senior for Life Sciences, and Senior Scholar; 2021-2022 Edison Fellow; David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, University of Akron School of Law)
Was named Faculty Co-Chair of The IP Policy Institute (IPPI) with The University of Akron School of Law
Was quoted in December 4 FDA Law Blog post “’If You’ve Got Legitimate Suspenders, Don’t Have an Unconstitutional Belt:’ Federalist Society Panel’s Take on Jarkesy and the Preserve Access to Affordable Generics and Biosimilars Act”
Lateef Mtima (IPPI Senior Scholar; Professor of Law, Howard University School of Law; Founder and Director, Institute for Intellectual Property and Social Justice (IIPSJ))
Michael D. Murray (IPPI Scholar; Spears Gilbert Associate Professor of Law, University of Kentucky)
Joined IPPI as a Scholar
On January 8, presented “Teaching in the Age of Generative AI: Beyond the Basics,” a report on two years of research on generative AI in law and legal education, at the AALS Annual Meeting 2025 in San Francisco, CA
At the Center for Computational Sciences, University of Kentucky’s CCS/ITSRCI Seminar Series on AI in Practice, presented “The Intersection of Machine Learning, Generative AI, and Intellectual Property Law” on January 16 and moderated panel presentation “Learning new subjects with Gen AI: AI tutoring and the search for grounded truth” on January 23
Kristen Jakobsen Osenga (IPPI Senior Fellow for Innovation Policy & Senior Scholar; Associate Dean of Academic Affairs, Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)
On December 18, testified before the U.S. Senate Committee on the Judiciary Subcommittee on Intellectual Property’s Hearing “Time Change: The RESTORE Patent Rights Act: Restoring America’s Status as the Global IP Leader.” A video of the hearing is available on hearing webpage, along with Professor Osenga’s written testimony.
Participated in February 12 roundtable on Intellectual Property and High-Tech Policy hosted by members of the IPPI team in Arlington, VA
Dr. Yogesh Pai (IPPI Scholar; Assistant Professor, National Law University Delhi (NLUD); Co-Director, Centre for Innovation, Intellectual Property and Competition at NLUD)
Was mentioned in a January 25 LiveLaw News Network announcement “NLU Delhi: Certificate Course On International Intellectual Property Law By Dr. Yogesh Pai”
Dr. Alexander Raskovich (IPPI Senior Economist; Director of Research, 2021-2024, Global Antitrust Institute (GAI), George Mason University Antonin Scalia Law School)
Joined IPPI as Senior Economist
Participated in February 12 roundtable on Intellectual Property and High-Tech Policy hosted by members of the IPPI team in Arlington, VA
Michael Risch (IPPI Senior Scholar; Vice Dean and Professor of Law, Villanova University Charles Widger School of Law)
Was cited in January 24 Business Insider article “They spoke out against their employer. Then they were hit with trade secret suits” (subscription may be required)
Was Referenced in January 29 Patently-O patent blog post “Is Google Simply Asking for More Efficient Infringement?”
Was interviewed for February 7 KCBS Radio segment “EU presses Apple for use of encrypted data in criminal investigations”
Alexandra Jane Roberts (IPPI Senior Scholar; Professor of Law and Media & Faculty Director, Center for Law, Information and Creativity (CLIC), Northeastern University School of Law)
Was quoted in December 18 Bloomberg article about the “Success Kid” meme litigation against Rep. Steve King
Was quoted in December 20 Decrypt article about a lawsuit over a meme coin
Spoke on the virtual December 6 panel “Copyright and Trademark Litigation Update” for OCEAN (Open Copyright Education Advisory Network)
In January, was quoted in Women’s Wear Daily about the Sean “Diddy” Combs trial
Was interviewed about research on dupes for January 21 episode of Felicia Caponigri’s podcast, A Fashion Law Dinner Party with Felicia (listen RSS, Spotify, or Apple Podcasts)
Research on dupes was discussed in January 27 The Fashion Law article “Can ‘Authentic Fakes’ Exist? A Dive into Dupes” (article may require subscription)
In February, presented articleDupes at UNC Law and Harvard Law
Was quoted in February 20 Northeastern Global News article “Could James Bond lose the 007 name because of a trademark claim? A legal expert says it it’s not that simple” about attempts to cancel James Bond trademarks
Was quoted in February 26 Northeastern Global News article “Why did Birkenstock try to claim its sandals are art?” about IP protection for fashion and the recent Birkenstocks case
Mark F. Schultz (IPPI Faculty Chair ; Goodyear Tire & Rubber Company Endowed Chair in Intellectual Property Law, University of Akron School of Law)
Was named Faculty Chair of The IP Policy Institute (IPPI) with The University of Akron School of Law
On December 10, spoke on the virtual U Akron – ITIF panel “Innovate4Health: How IP and Innovation Are Solving Global Health Challenges”
On January 15-17, served as a Distinguished Commentator for the virtual third and final meeting of the 2024-2025 Edison Fellowship
Participated in February 12 roundtable on Intellectual Property and High-Tech Policy hosted by members of the IPPI team in Arlington, VA
Judged the LatAM Health Champions Startup Competition for INNOS Colombia. The winners of this life sciences startup competition will be hosted in the U.S. in May.
Dr. Nicola Searle (IPPI Scholar; Reader (Associate Professor), Institute for Cultural and Creative Entrepreneurship (ICCE), Goldsmiths, University of London)
Joined IPPI as a Scholar
IPPI congratulates Dr. Searle on her promotion to Reader (a higher rank of Associate Professor)! Dr. Searle is a 2023-2024 Edison Fellow, as run by members of the IPPI team and Affiliates, and she kindly says that her promotion is “thanks – in no small part – to your support and the Edison Fellowship.”
Ted Sichelman (IPPI Senior Scholar; Professor of Law, University of San Diego School of Law; Director, Center for Intellectual Property Law & Markets; Founder & Director, Center for Computation, Mathematics, and the Law; Founder & Director, Technology Entrepreneurship and Intellectual Property Clinic)
On January 15-17, served as a Distinguished Commentator for the virtual third and final meeting of the 2024-2025 Edison Fellowship
Saurabh Vishnubhakat (IPPI Senior Scholar; Professor of Law, Yeshiva University Benjamin N. Cardozo School of Law)
Daniel R. Cahoy, Jorge Contreras, and Lynda Oswald, Overview of Worldwide Utility Model Filings, Litigation and Activity, in Jorge L. Contreras (ed.), Sub-Patent Innovation Rights: Utility Models, Petty Patents and Innovation Patents Around the World. Cambridge, UK, Cambridge University Press (avail. Feb. 2025).
Michael Risch, Amicus Brief in the United States Court of Appeals for the Federal Circuit in EcoFactor, Inc. v. Google LLC: “Brief for Professor Michael Risch and the Group of Interested Practitioners as Amicus Curiae in Support of EcoFactor” (files January 24 2025)
Alexandra J. Roberts, “Does IP Law Protect Influencers’ Aesthetics?–Gifford v. Sheil (Guest Blog Post),” Technology & Marketing Law Blog (December 13, 2024)
John R. Thomas & Christopher Holman, Thomas and Holman on Pharmaceutical Patent Law (ebook), Bloomberg Industry Group, Inc. (2024) [Treatise; available only with Bloomberg Law Subscription]
Greetings from C-IP2 Interim Executive Director Joshua A. Kresh
Reflecting on this vibrant winter season at the Center for Intellectual Property x Innovation Policy, I am filled with gratitude and excitement. As you can read in the report linked below, which covers this past September through November, we have been active and productive, hosting public and private events and supporting academic writing, including an amicus brief to the 9th Circuit submitted by Professor Sandra Aistars and Matthew Hersh, policy briefs on pending legislation (particularly a brief on RESTORE by Dr. Kristina Acri), and shorter articles on key issues including a blog post by Professor Emily Michiko Morris and Douglas Park on the FTC’s Orange Book challenges.
Our Edison Fellowship program continues to thrive. We held our second meeting of 2024-2025, and Fellows are currently finalizing drafts for our final meeting in January. We are also excited to welcome our 2025-2026 Edison Fellows soon.
The highlight over the past few months was undoubtedly our Annual Fall Conference, which was our best-attended event since the pandemic. Recordings are available online for those who missed the live sessions. We also convened our annual BioPharma roundtable, bringing together industry leaders and academics to discuss critical issues and explore future research opportunities.
We’ve expanded our network by welcoming new members to our Advisory Board and bringing on new Scholars and Practitioners in Residence to bring fresh perspectives and deep expertise to our mission.
These achievements are not possible without your continued support. Your commitment enables us to drive meaningful dialogue, research, and policy recommendations at the intersection of intellectual property and innovation. Looking towards spring, we have several exciting initiatives planned, including:
Scholarly and Policy writing on critical intellectual property issues,
Private roundtables with key stakeholders, and
Speaking engagements for our Scholars and Fellows at conferences, on podcasts, and in Congressional Hearings.
We are entirely funded by donations and rely on the generosity of our sponsors to continue our crucial work. Your support is the lifeblood of our mission, enabling us to conduct critical research, hold important conversations, and develop policy recommendations that can truly make a difference.
Additionally, we are seeking adjuncts and volunteers to support our Arts & Entertainment Advocacy Clinic and possibly our Entertainment Law class this spring. If you are interested in teaching an IP class at the law school or getting involved, please reach out to me directly at jkresh@gmu.edu.
C-IP2 Hosted & Co-Hosted Events
Second Meeting of the 2024-2025 Thomas Edison Innovation Fellowship
On September 12-13, C-IP2 hosted the second meeting of the 2024-2025 Thomas Edison Innovation Law and Policy Fellowship at Scalia Law School. The meeting was a works-in-progress workshop, where the Fellows presented rough drafts of their papers and received valuable feedback from Distinguished Commentators and other Fellows.
C-IP2’s 2024 Annual Fall Conference: The Importance of Exclusive Rights
C-IP2’s 2024 Annual Fall Conference explored the importance of exclusive rights in the patent and copyright industries, the historical basis for those rights, and what happens to innovators and creators if the rights are not protected. The conference featured former Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) Kathi Vidal.
Recordings of all conference sessions, including the fireside chat with Joshua Kresh, are available on the conference website and YouTube.
A blog post from C-IP2 Practitioner in Residence Keith Mallinson offers an overview of the panel “SEP Current & Proposed Regulations.”
A blog post from C-IP2 Senior Fellow for Innovation Policy & Senior Scholar Kristen Osenga gives a breakdown of the panel “Litigation Funding,” co-hosted with Scalia Law’s National Security Institute.
Panelists discuss “SEP Current & Proposed Regulations” on Day Two of the conference. Photo credit: Madison O’ConnorNSI Founder & Executive Director leads a discussion on “Litigation Funding” to wrap up Day One of the conference. Photo credit: Kristina PietroScalia Law students meet USPTO Director Kathi Vidal at the conference. Photo credit: Kristina Pietro
C-IP2 Advisory Board Members the Hon. Randall Rader (Ret.) and former USPTO Director David Kappos and C-IP2 Senior Fellow for China IP & Scholar Mark A. Cohen submitted an amicus brief to the Shenzhen, China Intermediate Court on jurisdiction of Chinese courts over licensing rates of patent pools. Read more at China IPR.
In October, C-IP2 Senior Fellow for Copyright Research and Policy & Senior Scholar Sandra Aistars and Matthew Hersh (Of Counsel, Mestaz Law), along with the Arts & Entertainment Advocacy Clinic and Student Advocate Natalie Nachman, submitted “Brief of Tattoo Artists Ross C. Berg, Jonny Gomez, and Maxime Plesciabuchi in Support of Plaintiff-Appellant and in Support of Reversal” (U.S. October 2024) in the case Jeffrey B. Sedlik v. Katherine Von Drachenberg, Kat Von D, Inc., High Voltage Tattoo, Inc. —— Related Legal Clinic Event: On Tuesday, October 29, Professor Aistars, Mr. Hersh, and Ms. Nachman also discussed this case and other copyright issues with photographer Jeff Sedlik and tattoo artist Ross Berg (@hotscratcher) during a Virtual Legal Clinic entitled “Protect Your Body of Work.”
Other Writing
In a new C-IP2 policy brief, The Importance of Injunctive Relief and the RESTORE Patent Rights Act, Senior Scholar Kristina M.L. Acri née Lybecker (Professor of Economics and Business, Colorado College) looks at the challenges introduced to the U.S. patent system by eBay Inc. v. MercExchange LLC and how the RESTORE Patent Rights Act could “reestablish a rebuttable presumption of an injunction in favor of patent owners who prove their patents have been infringed. This would place the burden on the infringer to demonstrate that a permanent injunction is not warranted, eliminating the perverse incentives that encourage predatory infringement and encouraging preinfringement licensing negotiations.
Dr. Ani Harutyunyan and Dr. William Matcham, both 2022-2023 C-IP2 Edison Fellows, co-wrote a policy report (published September 30, 2024) on Patent Quality in the United States: Findings and Suggestions for Policymakers for the Sunwater Institute, along with co-authors Matthew Chervenak, Mark Schankerman, and Nishant Shrestha. Dr. Matcham graciously gives credit to connecting with Dr. Harutyunyan through C-IP2’s Edison Fellowship program for contributing to the strong final product of the report. Media mentions include the following:
The Council for Innovation Promotion (C4IP) featured the report in a September 30 posting and also hosted a briefing event for the launch of the above Policy Report (recording available)
The report was featured in September 30 MarketWatch article “Council for Innovation Promotion Celebrates Groundbreaking Sunwater Institute Study Combatting Harmful Patent Disinformation,” October 1 Law360 article “Nonprofit Finds Bad Patent ‘Epidemic’ Is Just A Myth,” October 2 IPWatchdog article “Patent Quality Report Finds Improper Patent Abandonment is Greater Issue Than Improper Grants,” and October 4 ClaimWise Weekly Newsletter post “Sunwater Institute Urges Critical Reforms to U.S. Patent System in New Policy Report”
The policy report was also mentioned in a November LinkedIn post by USPTO Expert Witness Julie Burke
C-IP2 Advisory Board Member Judge Paul R. Michel (Ret.), along with fellow C4IP member Judge Kathleen O’Malley (Ret.), co-wrote a September 24 letter in support of PERA to the Senate Committee on the Judiciary.
IPWatchdog LIVE 2024 featured C-IP2 Advisory Board Members the Hon. Andrei Iancu, the Hon. David Kappos, the Hon. Susan G. Braden (Ret.) (also C-IP2 Jurist in Residence), the Hon. Paul Michel (Ret.), Corey Salsberg (Novartis), and Hans Sauer (BIO) and C-IP2 Senior Fellow for China IP & Scholar Mark Cohen among their great lineup of speakers.
New Affiliates
In November, C-IP2 welcomed Dr. Ani Harutyunyan as a Practitioner in Residence: “Since my time as an Edison Fellow, C-IP² has been instrumental in supporting my work by providing a network, resources, and a platform to share my research. I am delighted to deepen this collaboration and continue working with C-IP² as a Practitioner in Residence.”
This September, we were pleased to welcome Keith Mallinson (Founder, WiseHarbor) as a Practitioner in Residence!
Welcome to Dr. William Matcham, who joined C-IP2 this October as a Scholar! Says Dr. Matcham, “I am very pleased to start as a C-IP2 Scholar. A primary aim of my work is to support and promote evidence-based policymaking in U.S. intellectual property rights. C-IP2 provides an excellent platform to pursue this endeavor.”
George Mason University in Biotechnology News: In an October 16 article from Richmond Inno, George Mason University is mentioned as a member of the Virginia Drug Discovery Consortium, which supports biotech startups.
News from Current and Former Edison Fellows
Mary Catherine Amerine (2022-2023 Edison Fellow; Visiting Associate Professor of Law and Frank H. Marks Intellectual Property Law Fellow, The George Washington University Law School)
Dr. Gabriela Lenarczyk (2024-2025 Edison Fellow; Postdoctoral Fellow, Inter-CeBIL; Faculty of Law, University of Copenhagen)
In November, was ranked 7th among Poland’s top 35 lawyers under 35 in the competition organized by Wolters Kluwer Poland. Her participation in C-IP2’s Edison Innovation Fellowship is also mentioned.
On November 22, co-delivered a presentation at the University of Oxford Intellectual Property Law Discussion Group (IPDG) on “Code, courts, and confusion: The patentability puzzle of neural networks”
Recently published monograph Patent pledges na tle polskich instytucji prawnych, ze szczególnym uwzględnieniem licencji otwartej[Patent pledges against the background of Polish legal instruments, with particular emphasis on the License of Right’, book written in Polish] (Warsaw: Publishing House of ILS PAS; 2024) is “the first monographic treatment of the topic of patent pledges in continental law globally.”
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Dr. Kristina M. L. Acri, née Lybecker (C-IP2 Senior Scholar; John L. Knight Chair of Economics and Professor of Economics, Colorado College)
On October 17, moderated the panel “Cross-Industry Exclusive Rights” at C-IP2’s 2024 Annual Fall Conference
Was interviewed for the October 27 IP Protection Matters episode “Patent Evergreening: The Data Just Doesn’t Add Up”
Participated in C-IP2’s November 22 roundtable on Intellectual Property & Biopharmaceutical Policy at Scalia Law School in Arlington, VA
Sandra Aistars (C-IP2 Senior Fellow for Copyright Research and Policy & Senior Scholar; Founding Director, Arts & Entertainment Advocacy Clinic; Clinical Professor of Law, George Mason University Antonin Scalia Law School)
Organized and moderated the October 18 panel “Copyright and AI” at C-IP2’s 2024 Annual Fall Conference
Was mentioned in October 3 article “RA Pro Newsletter: Reclaiming Music Rights”
On November 6, served as moderator and panelist at Harvard Law School’s “Intellectual Property in Africa” workshop
Jonathan Barnett (C-IP2 Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)
New book, The Big Steal: Ideology, Interest, and the Undoing of Intellectual Property (Oxford University Press), is now available both at Amazon and Oxford University Press: “The book uncovers the overlooked synergies between ideological and business interests behind the weakening of U.S. patent and copyright protections over approximately the past two decades, in conjunction with the emergence of digital platforms in content and tech environments. An intellectual climate, business environment, and policy decisions that devalue intellectual property rights have produced a skewed ecosystem that favors platform-based and other integrated business models over the technology and content originators that drive and sustain the most robust innovation economies.”
Chief Judge Susan G. Braden (Ret.) (Court of Federal Claims (Ret.); C-IP2 Jurist in Residence)
On September 11, was interviewed by Compass Point Research & Trading LLC
On September 29, served as moderator and panelist for the panel “Perspectives on the State of U.S. Intellectual Property” with Dean Geibel (Chief Patent Counsel and Associate General Counsel, Samtec, Inc.) and Benjamin Weed (General Counsel, Ridge) at IP WATCHDOG LIVE 2024
On October 18, spoke on the panel “March-In Rights” at C-IP2’s 2024 Annual Fall Conference
On October 31, participated in the American Law Institute Revisors Committee Meeting on the Restatement of Copyright Law
Was mentioned in November 6 IPWatchdog post “Some First Reactions on What a Second Trump Presidency Will Mean for IP”
Participated in C-IP2’s November 22 roundtable on Intellectual Property & Biopharmaceutical Policy at Scalia Law School in Arlington, VA
In September, was selected as a member of the newly reauthorized Copyright Public Modernization Committee (CPMC)
Helped organize a September 24 IP and Diversity Job Fair hosted by the Motion Picture Association (MPA), American University Washington College of Law, and C4IP. Ms. Carrington also spoke on the career panel and represented MPA at the table talk portion.
On September 20, participated in an AI & IP Roundtable hosted by the Hudson Institute that “[brought] together a select group of scholars and thought leaders to discuss recent legal and policy developments concerning AI and intellectual property rights.”
Theo Cheng (C-IP2 Practitioner in Residence; Arbitrator and Mediator, ADR Office of Theo Cheng LLC; Adjunct Professor, New York Law School)
On September 4, spoke on the panel “Forging Critical Pathways to Mediation Success: A Candid Conversation with Top Mediators,” a webinar program sponsored by the Professional Liability Defense Federation
On September 13, was the keynote speaker at the virtual inaugural ABA Practice Development Institute and gave an address entitled “Turning Dreams into Reality: The Hustle Behind Building a Lasting ADR Practice”
On October 9, conducted a mediation training program for the Maryland Appellate Court in Annapolis, MD on “Bracketing and Mediator’s Proposals”
On October 10, was a panelist on the American Arbitration Association’s New Arbitrator Roundtable in New York City, where Mr. Cheng discussed how to build a practice as a new arbitrator
Eric Claeys (C-IP2 Senior Fellow for Scholarly Initiatives & Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)
Organized and participated in the September 12-13 Edison Fellowship Meeting at Scalia Law School in Arlington, VA
Moderated the September 25 Federalist Society webinar “Talks with Authors: Nowhere to Live: The Hidden Story of America’s Housing Crisis”
Mark Cohen (C-IP2 Senior Fellow for China IP & Scholar; 2024-2025 Edison Fellow)
Spoke on September 11 hybrid Practising Law Institute (PLI) program entitled “Global IP Spotlight: China”
Participated as a Fellow in the September 12-13 Edison Fellowship Meeting at Scalia Law School in Arlington, VA
On September 30, spoke on the panel “Will China Replace the EU and the US as the World’s IP Leader?” at IPWatchdog LIVE 2024
Spoke on the October Practising Law Institute (PLI) program “Global IP Spotlight – China”
On October 7, spoke with USPTO Director Kathi Vidal on USPTO engagement in China for the program “Executive Roundtable on Technology Innovation in East Asia and the Role of Patents.” On October 8, he also served as speaker for the program “Executive Roundtable on West Coast Perspectives on The Latest on U.S.-China Relations.” These were programs 4 and 5, respectively, of 8 in the Asia Society of Northern California’s 2025 Seeking Truth Through Facts U.S.-China Program Series – On Tech Innovation in East Asia.
In October, gave a guest lecture on IP and innovation in China for Dr. Denis Simon’s class at Duke University
On October 18, spoke on the panel “SEP Current & Proposed Regulations” at C-IP2’s 2024 Annual Fall Conference
John F. Duffy (C-IP2 Senior Scholar; Samuel H. McCoy II Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law)
Participated as a Distinguished Commentator in the September 12-13 Edison Fellowship Meeting at Scalia Law School in Arlington, VA
Tabrez Ebrahim (C-IP2 Scholar; Associate Professor of Law at Lewis & Clark Law School)
Was mentioned in September 10 Patently-O post “2nd Innovator Diversity Pilots Conference: Advancing Inclusion in Innovation”
Presented on “Comparative Intellectual Property & Religion” at the October 17-19 American Society of Comparative Law’s (ASCL’s) 2024 Annual Meeting held at Texas A&M University School of Law in Fort Worth, TX
ArticleJustice Tech was featured in November 27 Law360 piece “The Case for Co-Regulation of Justice Tech Platforms”
Gillian Fenton, Esq., CLP (C-IP2 Practitioner in Residence; Founder and Managing Director, LST Strategies LLC)
On September 12, participated as the invited speaker at an in-person event hosted by the D.C. Chapter of LES on the topic of “Navigating the US Manufacturing Requirement of the Bayh-Dole Act: Practice, Policy and Pitfalls”
Attended the Bayh-Dole Coalition’s September “Faces of American Innovation” event in Washington, D.C.
In October, participated in the CSIS LeadershIP Roundtable on CSIS’s IP Transition Report (Part 1 of 3)
In October, gave an in-person presentation at an event hosted by the D.C. Chapter of LES entitled “Navigating the US Manufacturing Requirement of the Bayh-Dole Act: Practice, Policy and Pitfalls”
Attended the Licensing Executives Society (USA & Canada) October 20-23 2024 Annual Meeting in New Orleans, LA, serving as a panelist at two workshops (“The US Manufacturing Requirement of the Bayh-Dole Act – Analysis and Practical Tips” and “Problematic Provisions – Parts of IP Licenses that Nobody Likes to Deal With”)
In October, served as Instructor for the inaugural presentation of LES’s Negotiation Skills Course (intermediate level)
On October 28, spoke on the panel “The CDMO Surge & Potential IP Landmines in Outsourcing” at IPWatchdog’s Life Sciences Masters 2024™ conference in Ashburn, VA
In November, taught Legal and IP Modules of an LES course on Due Diligence
Participated in C-IP2’s November 22 roundtable on Intellectual Property & Biopharmaceutical Policy at Scalia Law School in Arlington, VA
Jon M. Garon (C-IP2 Senior Scholar; Professor of Law and Director of the Intellectual Property, Cybersecurity, and Technology Law program, Nova Southeastern University Shepard Broad College of Law)
In September, gave keynote address on “Online & Hybrid Pedagogy and AI: Intersections, Connections, and Opportunities” at the Online & Hybrid Learning Pedagogy: Toward Defining Best Practices in Legal Education conference hosted by University of Denver Sturm College of Law
Was interviewed for September 23 10,000 Startups Podcast episode on “The Influencer Economy”
Was featured in September 26 Mako Media article “Law professor publishes book on effects of emerging technology” on his bookHow AI, Metaverses, Crypto, and Cyber will Upend the 21st Century
At the September ABA Fall Business Law Section Meeting, spoke as a panelist on “Business Lawyer’s Guide to U.S. Privacy Laws 2024” and on “Say it with Pride: What Every Business Needs to Know about the Influencer Economy”
Served as a panelist on the September ABA Podcast Series webinar “Intersections of GenAI and Cybersecurity: Reckoning and Responding to the Risk”
Dr. Ani Harutyunyan (C-IP2 Practitioner in Residence; Director of Research, Sunwater Institute)
In November, joined C-IP2 as a Practitioner in Residence
Camilla A. Hrdy (C-IP2 Scholar; Associate Professor of Law, Rutgers Law School)
Was mentioned in Rutgers Camden September announcement “Rutgers University–Camden Welcomes New Faculty Members for 2024–25 Academic Year”
Justin (Gus) Hurwitz (C-IP2 Senior Scholar; Senior Fellow and Academic Director, Center for Technology, Innovation, and Competition, University of Pennsylvania Carey Law School)
Was quoted in September 16 New York Post story “TikTok grilled in appeals court as judges consider challenge to sale-or-ban bill”
Steven D. Jamar (C-IP2 Senior Scholar; Associate Director, Institute for Intellectual Property and Social Justice (IIPSJ); Professor Emeritus, Howard University School of Law)
Participated in the November 1-2 IIPSJ 2024 Mosaic IP Law and Policy Roundtable Conference at Marquette University School of Law in Milwaukee, WI, providing comments and feedback on several of the works-in-progress presentations
Organized and participated in the September 12-13 Edison Fellowship Meeting at Scalia Law School in Arlington, VA
On September 30, attended the 1st Annual Digital Piracy Symposium “21st Century Piracy: A Discussion on Digital Piracy Harms and Solutions” of the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC)
Organized C-IP2’s October 17-18 2024 Annual Fall Conference and interviewed Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) Kathi Vidal for the keynote/fireside chat
Co-organized and led C-IP2’s November 22 roundtable on Intellectual Property & Biopharmaceutical Policy at Scalia Law School in Arlington, VA
Erika Lietzan (C-IP2 Senior Scholar; William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)
Participated as a Distinguished Commentator in the September 12-13 Edison Fellowship Meeting at Scalia Law School in Arlington, VA
On September 26-27, participated in a symposium at NYU Law School’s Engelberg Center entitled “Health Care at Reasonable Cost: The Hatch-Waxman Act at 40 and Beyond.” In the recording, Professor Lietzan discusses how the IRA drug price “negotiation” statute interacts with the Hatch-Waxman framework and explains “that the timing of the two frameworks are fundamentally misaligned, which may further undermine incentives to innovate.”
On October 8, participated in a Hudson Institute webinar entitled “Do Drug Patents Cause High Prices?” (recording available on YouTube), in which the speakers “discussed the importance of evidence-based policymaking, and the work that has been done to explore the connection between drug patents and drug prices.” Professor Lietzan focused on her 2023 paper Solutions Still Searching for a Problem, “which audited the primary empirical dataset offered to substantiate claims that pharmaceutical companies engage in ‘everg[r]eening.”” For further reading, see The “Evergreening” Metaphor, also by Professor Lietzan, which “explain[s] the basic conceptual flaw with the evergreening argument in more detail.”
Participated in C-IP2’s November 22 roundtable on Intellectual Property & Biopharmaceutical Policy at Scalia Law School in Arlington, VA
Daryl Lim (C-IP2 Senior Scholar; H. Laddie Montague Jr. Chair in Law; Associate Dean for Research and Innovation; Founding Director, Intellectual Property Law and Innovation Initiative; and co-hire, Institute for Computational and Data Sciences, Penn State University)
Served as chairperson for September 11 hybrid Practising Law Institute (PLI) program entitled “Global IP Spotlight: China”
Chaired the October Practising Law Institute (PLI) program “Global IP Spotlight – China”
Was mentioned in Penn State Dickinson Law October post “Associate Dean Daryl Lim Weighs In On DOJ Clearance Of Juniper Networks-HPE Merger”
Was mentioned in Penn State Dickinson Law October post “Associate Dean Daryl Lim Shares Insights at the CIArb-IPOS Conference on IP and Technology Dispute Resolution”
Adam MacLeod (C-IP2 Senior Scholar; Professor of Law, Faulkner University, Thomas Goode Jones School of Law; Research Fellow, Center for Religion, Culture, and Democracy)
Was mentioned in November AEI story “‘Propertizing’ Privacy: Evaluating the Merits of a Property-Based Approach to Personal Data Protection” regarding a December event
Keith Mallinson (C-IP2 Practitioner in Residence; Founder, WiseHarbor)
In September, joined C-IP2 as a Practitioner in Residence
On October 18, spoke on the panel “SEP Current & Proposed Regulations” at C-IP2’s 2024 Annual Fall Conference
Dr. William Matcham (C-IP2 Scholar; Assistant Professor (Lecturer) of Economics, Royal Holloway University of London)
In October, joined C-IP2 as a Scholar
Michael Mireles (C-IP2 Senior Scholar; Professor of Law and Director, Intellectual Property Certificate Concentration, University of the Pacific McGeorge School of Law)
Gave a presentation on “Cybersecurity and Intellectual Property” at the October 3-4 International Conference on Emerging Issues in Intellectual Property Law in Salzburg, Austria (PDF program)
Emily Michiko Morris (C-IP2 Senior for Life Sciences and Scholar; C-IP2 2021-2022 Edison Fellow; David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, University of Akron School of Law)
Organized the October 18 panel “March-In Rights” for C-IP2’s 2024 Annual Fall Conference
Spoke on the November 19 Federalist Society panel “Does Jarkesy Doom the Preserve Access to Affordable Generics and Biosimilars Act?”
Co-organized and participated in C-IP2’s November 22 roundtable on Intellectual Property & Biopharmaceutical Policy at Scalia Law School in Arlington, VA
Lateef Mtima (C-IP2 Senior Scholar; Professor of Law, Howard University School of Law; Founder and Director, Institute for Intellectual Property and Social Justice (IIPSJ))
On September 20, moderated a panel on “Law Firm Diversity Initiatives”at the Innovator Diversity Pilots Conference hosted by the Emory University School of Law
Spoke on the panel “Intellectual Property Rights in the Age of AI” at the North Carolina Central University School of Law Technology Law & Policy Property Center’s October 11 2024 Annual Law and Technology Summit in Durham, NC
Moderated the October 17 panel “Copyright and the Individual” at C-IP2’s 2024 Annual Fall Conference
Christopher M. Newman (C-IP2 Scholar; Associate Professor of Law, George Mason University Antonin Scalia Law School)
September Scalia Law faculty news announced role as an associate reporter for the American Law Institute to draft the Restatement (Fourth) of Property
Seán M. O’Connor (C-IP2 Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)
On September 30, spoke on the panel “Overview, Best Practices, and Potential Solutions” at the 1st Annual Digital Piracy Symposium “21st Century Piracy: A Discussion on Digital Piracy Harms and Solutions” of the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC)
On October 22, gave an Intellectual Property and Technology Law Program Speaker Series lecture on “Copyright as a Matter of Style” at University of Illinois Urbana-Champaign School of Law in Champaign, IL
Kristen Jakobsen Osenga (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar; Associate Dean of Academic Affairs, Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)
On September 27, presented on “IP, AT, and AAAs: What Intellectual Property Can Teach Antitrust About the War on Amazon Basics” at the Belmont University Law School Belmont Law Review Symposium
Signed September 18 and September 25 letters of law professors submitted to the Senate Judiciary Committee in support of PERA
Regarding the start of the Inventors Defense Alliance: Was quoted in September 19 IPWatchdog article “New Group Launched by IP VIPs Promises to Protect Inventors’ Right to Access Capital,” September 19 Law360 article “New Patent Legal Group Launches To Assist Inventors” (see also post by the International Center for Law & Economics “Kristen Osenga on the Inventors Defense Alliance”), and IAM September 25 article “New lobby group to advocate for inventors using litigation finance”
Spoke on the panel “Litigation Funding” and moderated the panel “SEP Current & Proposed Regulations” at C-IP2’s 2024 Annual Fall Conference:
Was quoted in October 10 IPWatchdog business story “Inventors Group to U.S. Courts Committee: Don’t be Duped by Corporate Call for Litigation Funding Transparency”
Michael Risch (C-IP2 Senior Scholar; Vice Dean and Professor of Law, Villanova University Charles Widger School of Law)
Was quoted in October 21 Bloomberg Law article “NJ Transit Patent Immunity Claim Crosses Circuit-Court Divide”
Alexandra Jane Roberts (C-IP2 Senior Scholar; Professor of Law and Media & Faculty Director, Center for Law, Information and Creativity (CLIC), Northeastern University School of Law)
In September, presented “Multi-Level Lies” at Seattle University School of Law’s faculty development series
Was quoted in a September 18 Northeastern Global News article about a stalled Prince documentary
In October, hosted an event on politicians’ unauthorized use of musician’s songs; the video is available here
Presented articleOf Marks & Minors at the Suffolk University Sixth Annual Intellectual Property & Innovation Conference
Served as a commentator at the Harvard, NYU, and UPenn Trademark and Unfair Competition Scholarship Roundtable
Presented articleMulti-Level Lies at the Boston University School of Law IP Workshop
ArticleDupes was accepted by and is forthcoming in NYU Journal of IP & Entertainment Law
Was quoted in an October 11 Washington Examiner article about artists’ objections to politicians’ use of their songs
On November 14, participated in the Northeastern University School of Law event “Student Breakfast and Discussion with Practitioner-in-Residence Carrie Goldberg,” interviewing Ms. Goldberg of C.A. Goldberg, PLLC about her law practice and her book “Nobody’s Victim”
On November 21, served as a panelist and moderator/host for the panel event “Feminist Cyberlaw” at Northeastern University School of Law’s Center for Law, Information & Creativity (CLIC) (video to be added to the event page)
Was quoted in November 26 The Verge article “Bad influence” about a lawsuit one social media influencer brought against another alleging copyright infringement, misappropriation of likeness, unfair competition, and more
Professor Roberts’ new research (see 2024 articleDupes) was discussed in November 26 Northeastern Global News piece “From Drunk Elephant substitutes to Ray-Ban knockoffs, is that ‘dupe’ legal?”
Was quoted in November 29 Front Office Sports article “The PWHL Could Be Inviting a Date With Taylor Swift’s Legal Team” about Taylor Swift and the Toronto Sceptres
W. Keith Robinson (C-IP2 Senior Scholar; Professor of Law, Wake Forest University School of Law)
Was mentioned in September 10 Patently-O post “2nd Innovator Diversity Pilots Conference: Advancing Inclusion in Innovation”
On September 20, spoke on the panel “Diversity In Innovation: What We’ve Learned, What We Need to Know, and Where We’re Headed” at the Innovator Diversity Pilots Initiative Conference at Emory University Law School, Atlanta, GA
Spoke on the panel “AI Law, Policy, and Governance: Building Trust in the Age of Intelligent Machines” at the North Carolina Central University School of Law Technology Law & Policy Property Center’s October 11 2024 Annual Law and Technology Summit in Durham, NC
Spoke on “Artificial Intelligence and the Fluid Sealing Industry: Opportunities and Challenges” as Keynote Speaker for the October 22 2024 Annual Meeting of the Fluid Sealing Association in Denver, CO
Moderated the panel “Introduction to AI and Healthcare” at the October 25 Wake Forest Journal of Law and Policy Symposium, held at Wake Forest University School of Law in Winston-Salem, NC
Spoke on “How Artificial Intelligence will Reshape Law, Society, and Responsibility” for the October 29 Lifelong Learning Annual Fall Lecture at Wake Forest University in Winston-Salem, NC
On November 4, spoke on “Issues with Generative AI and Copyright, Trademark and Patent Law” at the LMU Law Review Symposium Fall 2024, A Changing Profession in a Changing World: Discussions on Artificial Intelligence and Climate Change in the Law, held at Lincoln Memorial University Duncan School of Law in Knoxville, TN (learn more about the panels)
On November 19, spoke on “Accountability, Responsibility, and Transparency in AI Patents” at the Faculty Work in Progress Talk at Elon University School of Law in Greensboro, NC
Zvi S. Rosen (C-IP2 Scholar; Assistant Professor of Law, Southern Illinois University School of Law)
On October 8, presented at Federalist Society event “The Future of Law in an AI World”
Narrated an explainer video (published October 21; animated by the Regulatory Transparency Project and already at over a quarter million views) about fair use after the Warhol decision
Mark F. Schultz (C-IP2 Senior Scholar; Goodyear Tire & Rubber Company Chair in Intellectual Property Law, University of Akron School of Law; Director, Center for Intellectual Property Law and Technology)
Participated as a Distinguished Commentator in the September 12-13 Edison Fellowship Meeting at Scalia Law School in Arlington, VA
Moderated the panel “Continuation, Obvious Type Double Patenting, and Terminal Disclaimers” at C-IP2’s 2024 Annual Fall Conference
Participated in C-IP2’s November 22 roundtable on Intellectual Property & Biopharmaceutical Policy at Scalia Law School in Arlington, VA
Ted Sichelman (C-IP2 Senior Scholar; Professor of Law, University of San Diego School of Law; Director, Center for Intellectual Property Law & Markets; Founder & Director, Center for Computation, Mathematics, and the Law; Founder & Director, Technology Entrepreneurship and Intellectual Property Clinic)
Participated as a Distinguished Commentator in the September 12-13 Edison Fellowship Meeting at Scalia Law School in Arlington, VA
Dr. Bhamati Viswanathan (C-IP2 Scholar; Assistant Professor of Law, New England Law | Boston)
Participated as a Fellow in the September 12-13 Edison Fellowship Meeting at Scalia Law School in Arlington, VA
Attended the Copyright Society’s September 30 Copyright+Tech Conference at Fordham University Law School
Jonathan Barnett, The Big Steal: Ideology, Interest, and the Undoing of Intellectual Property (Oxford University Press) [Amazon | Oxford University Press]
Jonathan Barnett, An Unconventional View of Intellectual Property and Antitrust Policy (October 07, 2024). Competition Policy International, TechREG Chronicle (Sept. 2024), USC CLASS Research Paper No. 24-29 [PYMNTS | SSRN]
Johnathon Liddicoat, Ashleigh Hamidzadeh, Kathleen Liddell, & Mateo Aboy, How many drugs are repositioned each year in Europe?, The Journal of World Intellectual Property published by John Wiley & Sons Ltd. (October 21, 2024)
Alexandra Roberts, “Service Dress: Trademark Law’s Secret Third Thing,” JOTWELL (September 4, 2024) (reviewing Dustin Marlan, Tertium Quid Unveiled: Trade Dress and Service Design, 58 UC Davis L. Rev. __ (forthcoming 2024/2025))
It was my pleasure to participate in a panel session on “SEP Current & Proposed Regulations” last month at the George Mason University Antonin Scalia Law School Center for Intellectual Property x Innovation Policy (C-IP2) Annual Fall Conference entitled “The Importance of Exclusive Rights.” The other panelists were Angela Barr, Mark Cohen, and David Kappos. Our moderator was Kristen Osenga.
We compared SEP policies and developments in various jurisdictions including the United States, China, the EU, Germany and the UK. Discussion encompassed many aspects of SEP licensing including availability of injunctions, patent pooling, use of international arbitration, what constitutes discriminatory licensing, and rate setting such as that using the top-down approach.
I started by describing the European Commission’s audacious proposed new SEP regulation. I said this is bold, risky, reckless, and will be counter-productive to the Commission’s new industrial policy to slash red tape, promote innovation and improve global competitiveness. With the purported objective of increasing transparency and predictability in SEP licensing, the proposed legislation requires registration of patents, subjecting these to essentiality checking and rate regulation with the setting of an aggregate royalty and the apportionment of that based on patent counting using the top-down approach. The proposed rate setting is non-binding but introduces a 9-month delay, for example, before SEP owners can pursue litigation for infringement and unwillingness to pay FRAND royalties.
The proposed regulation — still in the works also with the European Parliament and Council — is contentious because the SEP licensing business model that prevails in smartphone licensing is in fundamental and major conflict to the way use of patented intellectual property has been licensed, indemnified, and monetized (or not) elsewhere, such as in the automotive industry.
David Kappos highlighted the global ramifications for the proposed EU regulation, reiterated that the EU’s impact assessment found no harm to rectify, and he questioned whether political support for the policy would be sustained with changing leadership in Europe. He identified fundamental deficiency in what is being proposed, including disregard for patent validity in proposed valuation assessments.
The United States has withdrawn from having an SEP policy — having wandered from side to side like the crab, according to Kappos. Proposed rate setting regulation has not been pursued in the United States. He also had much to say about the need for injunction availability — “the importance of exclusive rights,” as is the title of this conference. For example, availability in Germany versus the United States where it is difficult for SEP owners to obtain FRAND licenses.
Mark Cohen said that China, with its judicial-made civil law “sets its own course,” has no disclosed SEP policy and has been very unpredictable. For example, its pursuit of anti-suit injunctions a couple of years ago was a surprise. But these stopped after the EU filed a complaint against China at the WTO. China even interprets the meaning for FRAND in its own way. It is “highly experimental” there regarding SEPs. Once highly territorial, China acts with global considerations now. China is favoring the top-down approach in SEP valuation. If the EU adopts its proposed regulation, that will accelerate what China is doing. On the other hand, he noted that as Chinese companies such as Huawei become increasingly SEP licensors, rather than mostly licensees, China might well reconsider the generally low SEP valuations it derives.
Angela Barr explained InterDigital’s focus on standardized technologies and position as major a global licensor. She emphasised extensive work and long timescales in the technical developments, standard development and patent prosecution, with financial returns from licensing coming much later. She voiced concern about prospective price fixing with proposed SEP regulation. She believes that Europe is leading in SEP policy setting, but it is doing that in the wrong direction. There is a strong ecosystem in standard development and SEP licensing — things are not broken and don’t need fixing.
Here is some additional support to what was said in this panel session.
In September 2024, I co-authored an op-ed about the proposed EU regulation, how it is a solution absent a problem to fix, and how it is in conflict with the new Commission’s industrial strategy, as previously explained. Despite the European Commission’s own Impact Assessment finding no harm, the Commission is in the throes of outsourcing the task of identifying which standards and applications to regulate based on a new blanket test and the contractor’s opinion of where “severe distortion of internal market due to inefficiencies in licensing” has occurred or is expected to occur. This will be a very bureaucratic, burdensome, and contentious demand on SEP owners.
I recently had the pleasure of participating in a panel on third-party litigation funding (TPLF), which was part of the Annual Fall Conference at George Mason University’s Center for Intellectual Property x Innovation Policy.
The panel included experts from both industry and academia, highlighted the growing debate around TPLF, and crystallized why this financing tool is so crucial for America’s innovators and inventors.
At its core, TPLF enables outside investors to fund litigation, and in return receive a portion of any money recovered. While this practice has applications across many areas of law, its impact has been especially notable in patent litigation, where it helps put small startups on a level playing field with much larger companies.
Without outside funds, small companies with unique inventions are at the mercy of big businesses that copy their products.[1] Large tech companies engage in this so-called “efficient infringement” deliberately, knowing that the smaller competitors can’t afford to pursue them in court. TPLF helps inventors protect their intellectual property rights.
During our panel, opponents of TPLF raised concerns that the practice has national-security implications and leads to frivolous lawsuits. They suggested that foreign adversaries, particularly China, might fund litigation, either to access sensitive information or burden American companies with legal costs driven by frivolous litigation.
However, these arguments don’t withstand scrutiny.
First of all, the notion that foreign entities would fund patent litigation to access confidential information is far-fetched and impractical if not impossible. As we discussed on the panel, courts enforce rigorous protections to make sure information on disputed intellectual property isn’t shared. Violations carry severe consequences.[2]
It’s true that sovereign wealth funds — which are owned by governments — sometimes invest in litigation funding. But they do so as passive investors, with no control over cases (or the law firms hired) or access to information. They’re simply seeking returns, just like any other institutional investor. If foreign adversaries want to steal American IP, they have far more direct methods at their disposal, including cyber penetration and traditional corporate espionage.[3]
Second, the argument that TPLF leads to frivolous litigation isn’t supported by the data. Patent litigation has decreased by nearly 50% over the past decade, even as TPLF has grown.[4] This shouldn’t be surprising, as litigation funders only succeed when their cases have merit. They conduct extensive due diligence and reject the vast majority of potential cases. In fact, a panelist who worked at a major TPLF funder noted that his firm rejected 95.5% of potential cases. Put simply, no one makes money funding frivolous lawsuits.
The most telling moment in our discussion came when we explored the real dynamics at play. Opponents of TPLF, often large corporations, push for mandatory disclosure requirements that would expose funding arrangements, including investors’ identities.[5] This might sound reasonable on the surface, but it’s actually a tactical move designed to disadvantage patent owners. Such disclosures would allow the infringing companies to gauge their opponents’ resources and adjust litigation strategies accordingly — often by attempting to outspend and outlast smaller inventors. Disclosure of investor identities would enable investor harassment, driving investment away from third party funding. This is what opponents of TPLF really want.
The reality is that TPLF isn’t just about money, but about access to justice. Patents grant the exclusive right to make and profit from one’s invention. But if a startup can’t enforce that right because it can’t afford litigation, the patent is worthless. Without TPLF, we’d be left with a two-tiered system in which large corporations could enforce their rights while smaller inventors could not; and large corporations could misappropriate without consequence.
This would have real consequences for innovation. “Efficient infringement” doesn’t just hurt individual inventors, but undermines the entire patent system. It discourages inventors from starting companies, and small companies from putting time and resources into innovation. TPLF helps maintain the incentives that drive technological progress.
As our panel discussion wrapped up, it became clear that the debate over TPLF isn’t really about national security or frivolous litigation. It’s about whether we want our patent system to work for everyone — or just for those who can afford to participate.
If you’re interested in learning more about these issues, I encourage you to watch the full panel discussion, where we delve deep into the role of TPLF in our intellectual-property landscape.
The high cost of some pharmaceuticals is a complex issue, but the Federal Trade Commission’s (FTC’s) most recent criticism of pharmaceutical patents’ role is misguided. The FTC has criticized the listing of drug product device patents in the FDA’s “Orange Book,” a listing of patents related to various FDA-approved drug products. The FTC claims that listing these device patents serves merely to delay generic market entry, but they overlook key legal and practical details of how generic drugs enter the market and how listing in the Orange Book actually promotes generic competition by informing manufacturers of which patents cover branded drugs. Here’s a breakdown of where the FTC’s reasoning falls short.
30-Month Stays Do Not Delay Generic Market Entry
One of the FTC’s main concerns is the 30-month stay provision under the Drug Price Competition and Patent Term Restoration Act of 1984 (better known as the Hatch-Waxman Act), which temporarily halts FDA approval of a generic drug when a brand-name company sues the generic for patent infringement. The stay applies only to infringement suits over patents listed in the Orange Book. The FTC therefore argues that brand-name companies list device patents in the Orange Book simply to use this stay to delay generic entry into the market. However, this interpretation is outdated and inaccurate.
First, the FTC’s objection to these device patents appears to be based on a 22-year-old FTC study that has since been made obsolete by 2003 changes to the Hatch-Waxman Act. Prior to 2003, brand-name pharmaceutical patent owners could secure a 30-month stay for each patent that they added to their infringement suit. The 2003 modifications to Hatch-Waxman now allow patentees only a single stay.
Second, although even a single 30-month stay could delay generic market entry, the Hatch-Waxman Act already protects against this by expressly giving federal district courts discretion to lengthen or shorten the stay, thus allowing courts to curtail the stay if patent is invalid or clearly not infringed. This likewise curtails a patentee’s ability to abuse the 30-month stay by listing in the Orange Book patents that actually do not cover the drug product for which they are listed.
Third, recent research shows that the 30-month stay has little to no effect in delaying generic market entry. A study by Kannapan et al. found that generics usually take years to enter the market – long after the 30-month stay expired – due least in small part to the fact that FDA final approval itself on average takes more than 30 months. (Hatch-Waxman’s 30-month stay prevents only final FDA approval, such that the FDA can proceed with review of a generic’s application even during the stay.) Moreover, as the Kannapan study notes, almost 40% of brand-name patentees decline to file suit within that 45-day period, thus failing to trigger any 30-month stay.
Listing Patents in the Orange Book Facilitates Generic Patent Challenges
Perhaps more importantly, the FTC’s focus on the 30-month stay also misses the value of the Orange Book in providing not only a risk-free but often lucrative legal framework for generic drug manufacturers to challenge patents.
First, listing patents in the Orange Book also saves generics the often large costs of searching for and identifying any patents their drug products might infringe. Some commentators lament the fact that biosimilar manufacturers do not have a similar list of patents to help them plan their marketing strategy.
Second, while applying for FDA approval, generic manufacturers can file what are known as Paragraph IV certifications claiming that any patents listed in the Orange Book for the drug product at issue are invalid or uninfringed. These certifications constitute patent “infringement,” allowing brand-name manufacturers to sue the generics. This saves the generic from the risks of damages and other losses they otherwise might incur.
In addition, as an incentive to challenge patents, this system also grants the first successful generic challenger 180 days of market exclusivity as the only generic on the market. These exclusivity periods in some cases can be worth billions of dollars, making Paragraph IV challenges potentially quite lucrative. Not surprisingly, Paragraph IV certifications – even when not sued upon by brand-name patentees – appear to be quite successful in clearing the way generic market entry.
For patents not listed in the Orange Book, however, generics who challenge brand-name drug patents enjoy none of these benefits. When a patent is not listed in the Orange Book listings, a generic loses this risk-free opportunity to challenge patents, making generic entry more dangerous than many can afford. Even if a patent related to a drug product is not listed in the Orange Book, brand-name patentees can sue generic manufacturers for infringement and can do so even after the FDA has approved the generic for marketing. The generic is therefore at risk of liability for not only potentially millions of dollars of infringement damages but also loss of their investments in manufacturing and marketing the drugs at issue.
De-listing device patents would thus deprive potential generic manufacturers not only of notice but also of the protections of Paragraph IV certifications.
Device Patents Are Critical for Drug-Device Products But Are Difficult to Copy
The FTC nonetheless seems to believe that the targeted device patents are merely peripheral in importance and therefore should not be listed. For drug-device products like inhalers or auto-injectors, however, the device is crucial to efficacy and even safety.
For inhalers, for example, some devices are designed for children, while others are suitable only for adults. Some designs are specific to the condition being treated and the area of the throat that they target. Some designs are easier to use than others and therefore more likely to yield consistently sufficient dosages. Some designs also vaporize drugs into smaller particles that travel further and are more easily absorbed, making them more effective for some indications.
Similarly, the auto-injector device design is critical to the safety and operation of the oft-criticized EpiPen. Even small design changes can lead to large differences in safety – indeed, part of the reason why the EpiPen auto-injector device has multiple patents on it is that the design itself has been modified many times to address various safety concerns.
Because small differences in structure can lead to large changes in efficacy and safety, trying to create generic versions of EpiPen or other such complex drug-device products can be immensely difficult, leading to significant delays in market entry. For example, even though Teva had Mylan’s permission to create a generic version of EpiPen, Teva still had difficulty in doing so and received FDA approval only after multiple attempts and a two-year delay. For this reason, the FDA has developed guidelines specifically for generics trying to develop generic epinephrine autoinjectors, as well as specific guidelines for albuterol inhalers and other such drug-device products.
The FTC’s Strategy Could Backfire
Far from stifling competition, listing patents in the Orange Book helps generic manufacturers challenge patents by reducing the risks of entering the market. Removing these patents would reduce generics’ ability to compete, ultimately harming consumers.
CIP2 congratulates the Arts & Entertainment Advocacy Clinic at Scalia Law, led by Professor Sandra Aistars, and Student Advocate Natalie Nachman, and supported by Counsel of Record Matt Hersh of Mestaz Law, for filing a powerful amicus brief on behalf of three Tattoo Artists in the 9th Circuit Court of Appeals this week in Sedlik v. Von Drachenberg. The tattooers weighed in to support photographer Jeff Sedlik, who is appealing a copyright decision that permitted celebrity tattooist Kat Von D to tattoo a virtually exact replica of his iconic Miles Davis photograph on a client’s arm. Kat Von D and her companies also reproduced and promoted her infringing use of the Sedlik photo and resulting tattoo widely via social media in order to drive business to her various commercial interests without seeking permission or a license from Jeff.
The three tattoo artists explain the nature of the tattoo industry to the court. They also explain that the decision runs counter not only to the traditions of copyright law, but also to traditions of tattooing itself. Most tattooers have a deep respect for the creations of others. And modern tattooers have grown up with exposure to a wide variety of licensed sources. The amici understand that visual artists are part of a creative ecosystem, and that neither art form will flourish if the other is impoverished. If allowed to stand, this decision will ultimately be harmful to the tattoo industry.
To learn more about licensing in the visual arts, join Professor Aistars, Matt, and Natalie to discuss the case and other copyright issues with Jeff and one of their tattoo clients, Ross Berg, during the Virtual Legal Clinic: “Protect Your Body of Work” on Tuesday, October 29, from 2:00 – 3:30 PM Eastern! Register for free today.
Greetings from C-IP2 Interim Executive Director Joshua A. Kresh
As we transition into the fall season, I am delighted to share that we have had a productive summer and are looking forward to an eventful fall and winter. The past months have been marked by significant achievements and exciting developments, building upon the robust foundation we laid earlier this year.
We’ve seen impressive publications from our earlier Edison Fellows, along with many of our Scholars and Senior Scholars, demonstrating the lasting impact of our programs. The 2024 WIPO-U.S. Summer School on IP was a resounding success, and a number of recordings are available on our website and linked in this report.
We recently held our Copyright Roundtable, which fostered insightful discussions and collaborations on copyright and AI among industry leaders and academics. I want to take this opportunity to congratulate Shawn Shan, one of our Roundtable participants, who recently was named MIT Technology Review’s 2024 Innovator of the Year!
As usual, the discussions from this year’s Roundtables will inform panels at our upcoming Annual Fall Conference on October 17-18. This year’s conference will delve into the critical importance of exclusive rights in patent and copyright industries, exploring their historical foundations and the potential consequences for innovators and creators if these rights are not adequately protected. We’ve assembled an impressive lineup of speakers and panels, including Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) Kathi Vidal as Keynote Speaker, former USPTO Director David Kappos, Judge Paul R. Michel, Judge Susan G. Braden, and former U.S. Copyright Office Register of Copyrights Karyn A. Temple.
As we continue to expand our reach and impact, I want to express my deepest gratitude to our sustaining donors, whose unwavering support makes our work possible. Your contributions are the lifeblood of our non-profit center, enabling us to maintain our robust programming and advance intellectual property scholarship and policy. For those considering supporting our mission, I encourage you to reach out to me at jkresh@gmu.edu. I would be delighted to discuss the various ways you can get involved and contribute to our important work.
C-IP2 Hosted & Co-Hosted Events
2024 WIPO-U.S. Summer School on IP
From June 3-14, C-IP2 hosted the WIPO-U.S. Summer School on IP in partnership with the World Intellectual Property Organization (WIPO) for the seventh consecutive year. The program, held virtually this year, welcomed students from around the world: Angola, Armenia, Brazil, Canada, Chile, China, Ghana, Ethiopia, Estonia, India, Iran, Kazakhstan, Pakistan, the Philippines, Poland, Russia, Sri Lanka, Switzerland, Ukraine, the United States of America, and Venezuela. We’re grateful to WIPO for their partnership, and especially thank Mrs. Maria-Stella Ntamark for all her efforts. Many thanks to all our speakers, as well:
We’re grateful to all the C-IP2Affiliates who contributed their knowledge as program instructors: SandraAistars, JonathanBarnett, Judge SusanBraden (Ret.), DavidGrossman, Steven D. Jamar, Joshua Kresh, DaleLazar, EmilyMichikoMorris, LateefMtima, ChristopherNewman, KristenOsenga, EricPriest, AlexandraRoberts, MarkSchultz, AmySemet, and SaurabhVishnubhakat, as well as C-IP2Advisory Board Members TroyDow (Disney), DavidKappos (Cravath, Swaine & Moore LLP), John Kolakowski (Nokia Technologies), DavidKorn (PhRMA), KarenMarangi (RELX), Judge Paul R.Michel, and HansSauer (BIO).
Thanks also to all our visiting instructors and speakers, both returning and first-time: Christopher M. Arena (BakerHostetler), Brian J. Benison (George Mason University Antonin Scalia Law School), Kerri Braun (Cisco), Matthew Bryan (WIPO), Ann Chaitovitz (USPTO), Martha Chikowore (WIPO), Victoria Cundiff (University of Pennsylvania Carey Law School), John Dubiansky (Dolby), Rama G. Elleru (Special Competitive Studies Project), Tarek Fahmy (U.S. Department of State), Ben Golant (Tencent America), Dean Harts (3M), Sharon Israel (USPTO), Chris Katopis (ABA, IPL Copyright Committee), Emily Lanza (Office of Policy and International Affairs, U.S. Copyright Office), David Lowery (Songwriter & Artist), John Maltbie (Louis Vuitton North America, Inc.), Naveen Modi (Paul Hastings), Olivia Muller (Erik M. Pelton & Associates, PLLC), James Pooley (James Pooley, PLC; Former Deputy Director General, WIPO), Sydney Redden (Global Innovation Policy Center | U.S. Chamber of Commerce), Jessica Richard (Recording Industry Association of America), Laurie Self (Qualcomm), Maria Strong (U.S. Copyright Office), Dr. Andrew Toole (USPTO), Philip Warrick (Irell & Manella), Bradley J. Watts (Global Innovation Policy Center | U.S. Chamber of Commerce), and John Yun (George Mason University Antonin Scalia Law School).
A Zoom screenshot of the 2024 WIPO-U.S. Summer School on IP!
Webinar with USPTO Director Kathi Vidal on China Visit
On June 10, C-IP2 co-hosted an invitation-only webinar, organized by C-IP2 Affiliate & Edison Fellow Mark Cohen, with the USPTO on “A Discussion on USPTO Director Vidal’s Recent Trip to China.” Speaking were USPTO Director Kathi Vidal and her USPTO China team, who had just returned from meetings with some of China’s most senior leaders, including Vice Premier Ding Xuexiang; James Pooley, former WIPO Deputy Director General, who had just returned from a tour in China for his book Secrets; and former Chief Judge Randall Ray Rader (Ret.), who is one of the few American professors still teaching at Tsinghua Law School and participates in the US-China Track II High Level Dialogue with several other former senior U.S. government officials.
Virtual Panel on Law and AI
On June 11, with Arizona State University Consortium for Science, Policy and Outcomes (CSPO) and the Smithsonian Institution’s Lemelson Center for the Study of Invention and Innovation, C-IP2 co-hosted the public webinar “Adapting the Law to Major Technological Shifts: Lessons from History Applied to Current AI Challenges.” This panel looked at how the law has adapted to past changes in platform technologies and what lessons can be applied to Artificial Intelligence. Speakers included Arthur Daemmrich (Arizona State University Consortium for Science, Policy and Outcomes (CSPO), Rama G. Elluru (Special Competitive Studies Project – SCSP), the Hon. David J. Kappos (Cravath, Swaine & Moore LLP; Former Director, USPTO), Amy Semet (University at Buffalo School of Law), Saurabh Vishnubhakat ( Benjamin N. Cardozo School of Law), and moderator Joshua Kresh (C-IP2). A recording of the panel is available on C-IP2’s website.
Virtual Panel: “Patents in the Innovation Industries”
As a session during the WIPO-U.S. Summer School on IP, C-IP2 hosted a June 4 panel on “Patents in the Innovation Industries” with speakers John Kolakowski (Nokia Technologies), David Korn (PhRMA), Hans Sauer (BIO), Laurie Self (Qualcomm), and moderator Joshua Kresh (C-IP2). The recording of this session has been made available for public viewing.
C-IP2 Copyright Roundtable
On July 18-19, C-IP2 hosted the roundtable “Copyright and Generative AI: Recent Works and Works in Progress” at the Chateaux Deer Valley, Park City, Utah. The creative community, practitioners, legislators, regulators, and courts are all navigating how to understand the implications of Generative AI technology. This roundtable gathered scholars and industry experts who are actively writing and working in this space to discuss recent scholarship and works in progress during an invitation only meeting.
C-IP2 Hosts the Saudi Authority for Intellectual Property (SAIP)
On July 22, C-IP2 hosted a visiting delegation from the Saudi Authority for Intellectual Property (SAIP) at Mason Square Campus in Arlington, VA. The delegation spoke with Director Joshua Kresh, Professor Sandra Aistars, and C-IP2 Practitioners in Residence Terrica Carrington (Motion Picture Association) and David Grossman (Office of Technology Transfer, George Mason University) about C-IP2’s work, clinic activities, and more, and the delegation was then joined by Judge Paul Michel and Naveen Modi (Paul Hastings LLP) for an overview of the U.S. appellate process. Many thanks to the members of the delegation for including a visit to C-IP2 during their time in the Washington, D.C. area, and to Ms. Rawan Alfaiz (PhD Student and Lecturer, College of Science, George Mason University) for all her efforts in coordinating the event.
Gillian M. Fenton, Esq., CLP (Founder and Executive Director, LST Strategies LLC) joined C-IP2 as a Practitioner in Residence. Learn more about Ms. Fenton’s career.
This summer, 2021-2023 C-IP2 Visiting Scholar Masami Kawase (Japan Patent Office (JPO)) published the research he worked on while at George Mason University: Estimating patent value in the United States and Japan, World Patent Information (Volume 77, June 2024, 102280). Mr. Kawase used statistical analysis to value U.S. and Japanese patents, working on his primary research while in the United States and completing the project after his return to Japan at the end of June.
On July 9, Professor Emily Michiko Morris (C-IP2 Senior Fellow for Life Sciences & Scholar), Professor Mark Schultz (C-IP2 Senior Scholar), and Joshua Kresh (C-IP2 Interim Executive Director) filed comments objecting to the USPTO’s “proposed changes to terminal disclaimers and their use to overcome obviousness-type double patenting objections.”
On July 29, Mark Cohen (C-IP2 Affiliate & Edison Fellow; Non-Resident Scholar, University of California, San Diego; The National Bureau of Asian Research (NBR); The Sunwater Institute) and the Hon. Andrei Iancu (C-IP2 Advisory Board Member; Partner, Sullivan & Cromwell LLP) participated in the virtual CSIS-hosted panel discussion “Standard Essential Patents: Global Regulation and Litigation.” A video recording is available on the event website.
Congratulations to C-IP2 Senior Scholar ErikaLietzan, William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law at Mizzou Law, for being named a Best Lawyer in FDA Law for the 11th straight year, and for the 17th straight year as a Best Lawyer in Biotechnology & Life Sciences Law for 2025.
News from Current and Former Edison Fellows
Michael Doane (2024-2025 Edison Fellow; Visiting Assistant Professor of Law, The University of Akron School of Law)
In July, testified before the House Judiciary Committee’s Subcommittee on the Courts, Intellectual Property and the Internet on the topic of IP Litigation before the International Trade Commission. View Professor Doane’s testimony.
Michael Goodyear (2023-2024 Edison Fellow; Acting Assistant Professor, New York University School of Law)
Paper Infringing Information Architectures (UC David L. Rev, forthcoming 2025) was picked up by the U.S. Copyright Society in their July 22 Weekly Copyright Updates
Gabriela Lenarczyk (2024-2025 Edison Fellow; Postdoctoral Fellow, Centre for Advanced Studies in Bioscience Innovation Law (CeBIL), University of Copenhagen Faculty of Law)
In August, current intelligence paperThe nature, scope and validity of patent pledges, co-authored with Timo Minssen and Mateo Aboy, was published in the Journal of Intellectual Property Law & Practice
In August, chapter “The European Medicines Agency’s path to greater access to pharmaceutical regulatory data: balancing intellectual property rights and the right to privacy,” co-authored with Duncan Matthews and Żaneta Zemła-Pacud, was published in Kritika: Essays on Intellectual Property, Vol. 6 (Edward Elgar)
David A. Simon (2023-2024 Edison Fellow; Associate Professor of Law, Northeastern University School of Law)
Congratulations to Professor Simon for his upcoming research paperGatekeeping Drugs, forthcoming with the Northeastern University School of Law Research Paper and written as part of Professor Simon’s Edison Fellowship.
Molly Stech (2021-2022 Edison Fellow; General Counsel, International Association of Scientific, Technical and Medical Publishers (STM))
Participated in C-IP2’s July 18-19 Copyright Roundtable in Park City, Utah
Contributed July 30 C-IP2blog post “Authors are Humans and Creativity is a Function of Humanness: What the Mannion Court Can Teach Us About Generative AI’s Relationship to Authorship” on her forthcoming paperCopyright Thickness, Thinness, and a Mannion Test for Images Produced by Generative Artificial Intelligence Applications
The Fall 2024 semester at Antonin Scalia Law School began on August 21, and C-IP2 Affiliates at Scalia Law are teaching the following courses:
Professor Olufunmilayo Arewa is teaching “Securities Law & Regulation” and “Startup Law”
Professor Tun-Jen Chiang is teaching “Patent Law I” and “Torts”
Professor Eric Claeys is teaching “Jurisprudence Seminar” and “Torts”
Professor Chris Newman is teaching “Copyright Law” and “Freedom of Speech & 1st Amendment Law”
Professor Seán O’Connor is teaching “Contracts” and “Intellectual Property”
Scalia Law was included in a list of law schools that offer courses on artificial intelligence.
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Dr. Kristina M. L. Acri, née Lybecker (C-IP2 Senior Scholar; John L. Knight Chair of Economics and Professor of Economics, Colorado College)
Was cited in July 19 JAMA Network Medical News & Perspectives article “WHO Warns of Counterfeit Ozempic in the Global Supply Chain—Here’s What to Know”
Recent paperInjunctive Relief in Patent Cases: the Impact of eBay (posted to SSRN on June 25, 2024; Under review for publication in the Harvard Journal of Law & Technology), which was authored on the eBay decision and injunctive relief in patent infringement cases, was cited on July 30 in both a press release by Senator Coons of Delaware in the announcement of the RESTORE Bill and a supportive statement issued by the Innovation Alliance.
Sandra Aistars (C-IP2 Senior Fellow for Copyright Research and Policy & Senior Scholar; Founding Director, Arts & Entertainment Advocacy Clinic; Clinical Professor of Law, George Mason University Antonin Scalia Law School)
Was interviewed for the June 6 POLITICO Tech podcast episode “Whose voice is it anyway? When AI comes for the rich and famous” on the dispute between actress Scarlet Johannson and Open AI (listen online or using the Apple Podcasts app)
As part of the online WIPO-U.S. Summer School on IP:
On June 12, taught “Fundamentals of Copyright”
On June 12, moderated the panel “Copyright in the Creative Industries”
On June 13, participated in a fireside chat with Sharon Israel (USPTO)
On June 14, participated in the “IP Office Hours” session
Organized and led C-IP2’s July 18-19 Copyright Roundtable in Park City, Utah
Was quoted in August 29 Bloomberg Law article “OpenAI Pushes Prompt-Hacking Defense to Deflect Copyright Claims”
Jonathan Barnett (C-IP2 Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)
Authored June 20 Center for Strategic & International Studies (CSIS) piece “Democracies’ Advantage: Leveraging Innovation Coalitions to Meet the Autocratic Challenge”
On June 3, taught the session “Overview and Economics of Intellectual Property” as part of the online WIPO-U.S. Summer School on IP
On June 27, piece “The Antitrust Revolution That Mostly Wasn’t and Probably Won’t Be” was published by the Network Law Review
A recording is now available of the April 9 panel “National Security: Innovation, Intellectual Property, and International Competitiveness” on which Professor Barnett spoke at LeadershIP 2024 (co-hosted by LeadershIP and CSIS)
Was quoted in RealClearPolicy’s July 15 article “How America’s Democratic Foundation Promotes Innovation and U.S. Security”
Piece “Why Robust Intellectual Property Rights in Wireless Technologies Are a National Security Imperative” was published on August 23 by the Hudson Institute
Chief Judge Susan G. Braden (Court of Federal Claims (Ret.); C-IP2 Jurist in Residence)
On June 4, co-taught the session “Enforcing Rights: U.S. Patent Litigation” with Joshua Kresh as part of the online WIPO-U.S. Summer School on IP
On August 1-2, attended the ABA IP Section Council Meeting and Leadership Dinner
On August 6, provided feedback on Pugatch Consilium March-In Rights Paper for the U.S. Chamber of Commerce’s BASIC Coalition
On August 6, attended the U.S. Chamber of Commerce’s Basic Coalition Briefing with staff of Representative Pete Stauber (MN)
Contributed the August 19 article “An Odor of Mendacity: The Campaign to Finalize NIST’s Patent “March-In” Rights Guidance” to the Washington Legal Foundation
On July 11, participated in a closed-door listening session at the USPTO on AI input transparency and output disclosures (See UPSTO webpage on “Strategic plan accomplishments” > “Goal #2” > “USPTO milestones”: “On July 11, 2024, the USPTO hosted a closed stakeholder listening session in Alexandria to gather feedback on the topic of transparency in relation to artificial intelligence and copyright. During the session, stakeholders were invited to discuss topics involving artificial intelligence inputs and outputs.”
On August 28, participated in an in-person stakeholder listening session hosted by the USPTO regarding legal protection issues related to AI-generated outputs
Theo Cheng (C-IP2 Practitioner in Residence; Arbitrator and Mediator, ADR Office of Theo Cheng LLC; Adjunct Professor, New York Law School)
On June 4, served as a panelist on “Amplifying Your Business & Growing Your Future,” a program that is part of the 23rd Annual Conference of the Association for Conflict Resolution – Greater New York Chapter
On June 10, at the Annual Meeting of the Copyright Society of the U.S.A.held in Cleveland, OH, was elected the incoming Vice President/President-Elect. Mr. Cheng will serve from 2024-2026, after which he will become the President, serving from 2026-2028.
Mark Cohen (C-IP2 Affiliate & Edison Fellow; Non-Resident Scholar, University of California, San Diego; The National Bureau of Asian Research (NBR); The Sunwater Institute)
This summer, joined C-IP2 as an Affiliate
Organized June 10 invitation-only webinar “A Discussion on USPTO Director Vidal’s Recent Trip to China,” co-hosted by C-IP2 and the USPTO and featuring speakers USPTO Director Kathi Vidal and her USPTO China team, who had just returned from meetings with some of China’s most senior leaders, including Vice Premier Ding Xuexiang; James Pooley, former WIPO Deputy Director General, who had just returned from a tour in China for his book Secrets; and former Chief Judge Randall Ray Rader (Ret.), who is one of the few American professors still teaching at Tsinghua Law School and participates in the US-China Track II High Level Dialogue with several other former senior U.S. government officials.
On July 29, participated in the virtual CSIS-hosted panel discussion “Standard Essential Patents: Global Regulation and Litigation.” A video recording is available on the event website.
Gregory Dolin (C-IP2 Senior Scholar; Associate Professor of Law, University of Baltimore School of Law)
Was mentioned in Patently-O’s June 17 post “Democracy on Trial: Chestek and the Future of USPTO Accountability”
John F. Duffy (C-IP2 Senior Scholar; Samuel H. McCoy II Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law)
Spoke on July 3 Federalist Society webinar “Courthouse Steps Decision: Corner Post, Inc. v. Board of Governors of the Federal Reserve System”
Was mentioned in the University of Virginia School of Law’s July 15 news story “Student’s Note Influenced a Supreme Court Case Eight Years Later”
Tabrez Ebrahim (C-IP2 Scholar; Associate Professor of Law at Lewis & Clark Law School)
On July 25, spoke on the panel “Intellectual Property Workshop: Intellectual Property and Religious Faith” at the SEALS 2024 Annual Conference in Fort Lauderdale, FL
Gillian Fenton (C-IP2 Practitioner in Residence; Founder and Executive Director, LST Strategies LLC)
This summer, joined C-IP2 as a Practitioner in Residence
On April 9, spoke on the panel “National Security: Innovation, Intellectual Property, and International Competitiveness” at LeadershIP 2024 (co-hosted by LeadershIP and CSIS). A recording of the panel is available on the event website.
On July 23, taught Module One of the Licensing Executives Society (LES) IP Licensing Basics virtual course. Module One is an overview of the types of intellectual property under U.S. law and also surveys some “IP adjacent” assets such as know-how and data.
On August 16, spoke on the panel “Why IP is beneficial to innovators and companies alike” at the USPTO’s Invention-Con 2024
On August 27, co-taught Domains 4-5 of the LES Certified Licensing Professional (CLP) preparation course. Domain 4 is about negotiating business terms of a licensing agreement, and Domain 5 is about alliance management and dispute resolution mechanisms.
Jon M. Garon (C-IP2 Senior Scholar; Professor of Law and Director of the Intellectual Property, Cybersecurity, and Technology Law program, Nova Southeastern University Shepard Broad College of Law)
PaperThe Revolution will Be Digitized: Generative AI, Synthetic Media, and the Medium of Disruption (20 Ohio State Tech. L. J. 139 (2023)) was picked up by the U.S. Copyright Society in their July 22 Weekly Copyright Updates
Latest book, How AI, Metaverses, Crypto, and Cyber will Upend the 21st Century (Edward Elgar Publishing 2024), was just published this July and is now available for order and shipping. The front matter and first chapter can be accessed online for free at the link above. The book was also featured in OpenPR’s July 29 press release.
In July, presented on “Strategies and Tactics for Legal Artificial Intelligence Implementation” at the American Board of Trial Advocates Florida Annual Convention
Participated in C-IP2’s July 18-19 Copyright Roundtable in Park City, Utah
Served several roles participating in the July 21-27 SEALS 2024 Conference, hosted by the Southeastern Association of Law Schools:
On July 21, was a Discussant for the session “Distance Education Workshop: Online & Hybrid Learning Pedagogy Best Practices and Standards Development”
On July 22, moderated the session “Distance Education Workshop: Use of Generative AI, Extractive AI, and Other Technology in the Training of Legal Professions”
On July 24, was a Discussant for the session “Assessing Learning to Achieve Student Competency”
On August 6, served as a panelist for the virtual program “Data Privacy Fundamentals in the Age of AI,” a Business Law Basics Webinar hosted by the ABA Business Law Section
David Grossman (C-IP2 Practitioner in Residence; Senior Director of Technology Transfer & Industry Collaboration, Office of Technology Transfer, George Mason University)
On June 6, taught the session “Simulation Exercise: Transfer of Technology and Licensing” as part of the online WIPO-U.S. Summer School on IP
Camilla A. Hrdy (C-IP2 Scholar; Associate Professor of Law, Rutgers Law School)
Congratulations to Professor Hrdy on her new position as an Associate Professor of Law at Rutgers Law School this fall!
Justin (Gus) Hurwitz (C-IP2 Senior Scholar; Senior Fellow and Academic Director, Center for Technology, Innovation, and Competition, University of Pennsylvania Carey Law School)
Was quoted in June 26 Salon news story “‘Teeing up the next one’: Expert says SCOTUS ‘roadmap’ helps right-wingers revise ‘deranged’ cases”
Was quoted in PennToday’s June 28 news story “Law experts on SCOTUS decisions on Chevron, Jan. 6 obstruction charge, administrative powers”
Was quoted in The Telegraph’s July 1 news article “The Supreme Court casts doubt on Florida and Texas laws to regulate social media platforms”
Mentioned in The Regulatory Review’s July 15 series of essays, “The Supreme Court’s 2023-2024 Regulatory Term”
Steven D. Jamar (C-IP2 Senior Scholar; Associate Director, Institute for Intellectual Property and Social Justice (IIPSJ); Professor Emeritus, Howard University School of Law)
On June 13, taught the session “Generative AI Challenges to IP Law and Administration” as part of the online WIPO-U.S. Summer School on IP
Joshua Kresh (C-IP2 Interim Executive Director)
As part of the online WIPO-U.S. Summer School on IP:
On June 3, moderated the panel “The Role of IP Institutions in the Global IP System”
On June 4, co-taught the session “Enforcing Rights: U.S. Patent Litigation” with Judge Susan G. Braden (Ret.)
On June 4, moderated the panel “Patents in the Innovation Industries”
On June 5, participated in a fireside chat with JudgePaul Michel
On June 14, participated in the session “IP Office Hours”
With Emily Michiko Morris and Mark Schultz, submitted comments “In Response to Notice of Proposed Rulemaking on Terminal Disclaimer Practice to Obviate Nonstatutory Double Patenting” on July 9
Participated in C-IP2’s July 18-19 Copyright Roundtable in Park City, Utah
July 23 roundtable in Washington, D.C. (private roundtable lunch on “AI & a Better Connected World,” hosted in Washington, D.C. by Semafor – lead speakers we “Semafor Contributor and two-time Pulitzer Prize finalist Jon Hilsenrath and Francine Katsoudas, Executive Vice President and Chief People, Policy & Purpose Officer of Cisco”)
Dale Lazar (C-IP2 Practitioner in Residence; Director, Patent Program, Innovation Law Clinic)
On June 4, taught the session “Establishing Rights: U.S. Patent Prosecution” as part the online WIPO-U.S. Summer School on IP
Dr. John Liddicoat (C-IP2 Scholar; Senior Research Associate and Affiliated Lecturer, Faculty of Law, University of Cambridge)
On June 20, gave a presentation on “The Evolution of Repurposing” at the Inter-CeBIL Annual Retreat in Copenhagen, Denmark
This July, co-penned a submission with James Parish to the USPTO on patents and AI entitled “Comment on the ‘Impact of the Proliferation of Artificial Intelligence on Prior Art, the Knowledge of Person Having Ordinary Skill in the Art, and Determinations of Patentability Made in View of the Foregoing’” (2024)
In August, the United Kingdom Intellectual Property Office interviewed Dr. Liddicoat as part of their ‘IP 2050’ project, which aims to help develop future policies and tools.
Erika Lietzan (C-IP2 Senior Scholar; William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)
In June, was named 2024 Winner of the Loyd E. Roberts Memorial Prize in the Administration of Justice, which was created to “honor the [University of Missouri] law professor or student who has made the most significant contribution to improving the administration of justice, either within Missouri, nationally or internationally.” Professor Lietzan was also mentioned in St. Louis Record’s June 3 press release “Professors Mitchell, Freyermuth and Lietzan win 2024 Mizzou Law Faculty Awards.”
In June, new articlePetition Power was published in University of Missouri School of Law Legal Studies Research Paper No. 2024-17. Professor Lietzan’s article was also featured in Yale Journal on Regulation’s June 25 Ad Law Reading Room entry.
Was mentioned in The Regulatory Review’s July 1 post “Moving Administrative Processes Forward, Together”
Congratulations to Professor Lietzan for being named a Best Lawyer in FDA Law for the 11th straight year, and for the 17th straight year as a Best Lawyer in Biotechnology & Life Sciences Law for 2025!
Daryl Lim (C-IP2 Senior Scholar; H. Laddie Montague Jr. Chair in Law; Associate Dean for Research and Innovation; Founding Director, Intellectual Property Law and Innovation Initiative; and co-hire, Institute for Computational and Data Sciences, Penn State University)
Article “Innovation and Artists’ Rights in the Age of Generative AI” was published on July 10 by the SFS Georgetown Journal of International Affairs
In August, presented his paperThe Antitrust–Copyright Interface in the Age of Generative Artificial Intelligence, co-authored with Professor Peter K. Yu (Texas A&M University School of Law), at The Chinese University of Hong Kong (CUHK)
Keith Mallinson (C-IP2 Practitioner in Residence; Founder, WiseHarbor)
In June, joined C-IP2 as a Practitioner in Residence
Spoke on the panel “Transparency” during the conferencePatents in Telecoms and the Internet of Things, which was hosted May 16-17 in London, United Kingdom, by the UCL Faculty of Laws
July 2 article “Declining SEP royalties payments yield rates significantly below licensors’ headline figures” on the IP finance blog was ranked #1 in the Top 10 LinkedIn postings on IP for the week: “Aggregate royalties paid to major SEP licensors Ericsson, InterDigital, Nokia and Qualcomm have declined by 28% since peaking in 2015 to 2023. The aggregate “royalty yield” (i.e. total royalties paid divided by handset sales revenues) for these licensors has dropped even more steeply by 38% since 2015. Percentage royalty yields have been diminished by royalty base caps and the switch to monetary amount per unit royalty rates in some cases. While ad valorem percentage rates charged hedge for inflationary increases in phone prices, caps and fixed amounts per unit are not indexed. Cellular SEP licensors obtain significantly lower royalties than the maximum percentage rates and monetary rates per unit publicly headlined on their web sites. That’s only to be expected because licensees insist that royalties are capped on higher-priced smartphones.”
July 3 article “European Commission’s proposed top-down approach would massively reallocate SEP royalties to China” was posted to the IP finance blog: “The European Commission’s scheme to regulate royalties by setting aggregate royalties and apportioning them with the top-down approach based on standard-essential patent counts would very disturbingly and harmfully effect SEP licensing. My analysis shows that apportioning current levels of aggregate royalties based on declared-essential patent counts would massively reallocate royalties received by US and European licensors to Chinese companies.”
Hina Mehta (C-IP2 Practitioner in Residence; Program Director, National Science Foundation (NSF))
Served as a panelist on “Challenges with New Startups in Biomaterials” at the 7th Mid Atlantic Biomanufacturing Symposium held at the University of Virginia from July 11-12
Congratulations to Hina Mehta for her new position as Program Director at the National Science Foundation as of August 12!
Emily Michiko Morris (C-IP2 Senior for Life Sciences and Scholar; C-IP2 2021-2022 Edison Fellow; David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, University of Akron School of Law)
As part of the online WIPO-U.S. Summer School on IP:
On June 6, taught the session “IP Issues in Life Sciences R&D and Commercialization”
On June 14, participated in the session “IP Office Hours”
With Mark Schultz and Joshua Kresh, submitted comments “In Response to Notice of Proposed Rulemaking on Terminal Disclaimer Practice to Obviate Nonstatutory Double Patenting” on July 9
Lateef Mtima (C-IP2 Senior Scholar; Professor of Law, Howard University School of Law; Founder and Director, Institute for Intellectual Property and Social Justice (IIPSJ))
In June, sat down with The Vanguard Network’s “It’s Not Woke–It’s Constitutional,” podcast, where he discussed the social justice implications of intellectual property on the episode “Getting Smart About Intellectual Property and Social Justice”
On June 13, taught the session “Generative AI Challenges to IP Law and Administration” as part of the online WIPO-U.S. Summer School on IP
Participated in C-IP2’s July 18-19 Copyright Roundtable in Park City, Utah
Christopher M. Newman (C-IP2 Scholar; Associate Professor of Law, George Mason University Antonin Scalia Law School)
On June 12, taught the session “Copyright in the Digital World” as part of the online WIPO-U.S. Summer School on IP
Participated in C-IP2’s July 18-19 Copyright Roundtable in Park City, Utah
Kristen Jakobsen Osenga (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar; Associate Dean of Academic Affairs, Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)
As part of the online WIPO-U.S. Summer School on IP:
On June 3, taught the session “Fundamentals of U.S. Patent Law”
On June 14, participated in the session “IP Office Hours”
Was mentioned in Holland & Knight’s August 26 post “Section 101 Patent Eligibility Roundup: It’s Been Too Long”
Eric Priest (C-IP2 Senior Scholar; Associate Professor and Faculty Director, Asian Studies, Law, Law-JD, University of Oregon School of Law)
On June 12, taught the session “Securing & Using Copyright Protection Globally” as part of the online WIPO-U.S. Summer School on IP
Michael Risch (C-IP2 Senior Scholar; Vice Dean and Professor of Law, Villanova University Charles Widger School of Law)
On June 10, was interviewed for KCBS Radio spot “K-pop group ‘New Jeans’ to sue alleged defamer under South Korean law”
On July 28 , was interviewed on KCBS Radio regarding TikTok information sharing with ByteDance in China
Alexandra Jane Roberts (C-IP2 Senior Scholar; Professor of Law and Media & Faculty Director, Center for Law, Information and Creativity (CLIC), Northeastern University School of Law)
Chapter “Oppressive and Empowering #Tagmarks” was published in Feminist Cyberlaw (eds. Meg Leta Jones & Amanda Levendowski; University of California Press, 2024; 50-61)
Was quoted in June 1 IGN article “In 10 Years, Superman Will Be in the Public Domain. That May Not Mean What You Think It Does”
On June 8, presented Of Marks & Minors (read abstract) at the University of Houston Law Center’s Institute for Intellectual Property & Information Law (IPIL) annual symposium in Santa Fe, New Mexico
On June 10, led a fireside chat with John Maltbie (Director of Intellectual Property, Civil Enforcement, Louis Vuitton North America, Inc.) as part of the online WIPO-U.S. Summer School on IP
Was quoted in June 3 Slate article “When a Lifetime Subscription Isn’t for Life”
Was quoted in June 5 The Ankler article “The AI Voice Revolution is Bigger Than ScarJo”
Was interviewed about her articleMulti-Level Lies (UC Davis Law Review, Forthcoming) by Professor Andrew Jennings for a June 18 episode of his Business Scholarship Podcast (listen to the interview on Andrew Jennings’ website or on Apple Podcasts, Spotify, or YouTube)
Was quoted in June 26 Bloomberg Law article “Crocs Case at Federal Circuit Set to Shape False Advertising Law”
Was quoted in June 27 Northeastern Global News article “Will YouTube’s attempt to strike AI music deals with record labels change the music industry?”
Was quoted in July 8 The Times of London article about a school shooting victim gaining the right to control use of the shooter’s name
In July, was quoted in The Deal article about a liquidity crunch at MLM Rodan + Fields (article may be behind a paywall)
Was quoted in July 15 The Wall Street Journal article about the effect of two recent Supreme Court decisions on FTC’s regulation of deceptive advertising practices
Was quoted in July 17 Northeastern Global News article and July 23 Vanity Fair article about the use of music at political rallies
Was quoted in July 22 article on Sportico and MSN about a trademark dispute between Troy Aikman and Lamar Jackson
Was quoted in July 24 World Trademark Review article on the anniversary of Twitter’s rebrand to X
In July, was interviewed on the Business Scholarship Podcast with Professor Andrew Jennings about Professor Roberts’ articleMulti-Level Lies, which is forthcoming in UC Davis Law Review. The podcast episode is available on Apple, Spotify, YouTube, and Direct.
Was quoted in August 5 FastCompany article“Why Zillow Gone Wild is being sued for alleged copyright infringement”
Was quoted in August 8 Boston Globe article “Missed the Taylor Swift tour? New Hampshire may have the Eras experience you need” about a Taylor Swift impersonator
Was interviewed for August 16 posts on NBC News’ TikTok and Instagram over generative AI’s use of copyrighted characters
Was quoted in August 27 Northeastern Global News article “Can Jools Lebron still trademark ‘Very Demure, Very Mindful’? Legal expert explains her options” about trademark rights in a viral catchphrase
On August 22, posted a draft of articleDupes on SSRN
Wrote August 30 explainer for MSNBC about the trademark dispute over the phrase “very mindful, very demure,” created by a TikTok star
Keith Robinson (C-IP2 Senior Scholar; Professor of Law, Wake Forest University School of Law)
On August 14, moderated the webinar “The First Amendment in Trademark Law after Vidal Elster”
Mark F. Schultz (C-IP2 Senior Scholar; Goodyear Tire & Rubber Company Chair in Intellectual Property Law, University of Akron School of Law; Director, Center for Intellectual Property Law and Technology)
Spoke in the session “Fair Use and AI: A Debate” at the CSUSA Annual Meeting, held in Cleveland, Ohio from June 9-11
As part of the online WIPO-U.S. Summer School on IP
On June 6, taught the session “Fundamentals of Trade Secrets”
On June 7, taught the session “Real-World Value of Trade Secrets in a Global Innovation Economy”
On June 7, taught the simulation exercise “Best Practices for Protecting Trade Secrets”
On June 7, moderated the panel “Trade Secrets in Global Business”
With Emily Michiko Morris and Joshua Kresh, submitted comments “In Response to Notice of Proposed Rulemaking on Terminal Disclaimer Practice to Obviate Nonstatutory Double Patenting” on July 9
Participated in C-IP2’s July 18-19 Copyright Roundtable in Park City, Utah
Brenda Simon (C-IP2 Senior Scholar; ProFlowers Professor of Internet Studies and Professor of Law, California Western School of Law)
On August 9, presented paperArtificial Intelligence and the Self-Represented Inventor (Loyola of Los Angeles Law Review, Forthcoming) at the Intellectual Property Scholars Conference at UC Berkeley Law
Dr. Bhamati Viswanathan (C-IP2 Scholar; Assistant Professor of Law, New England Law | Boston)
Was quoted in June 21 Wired article about “AI-powered search startup Perplexity” and plagiarism allegations
Alexandra J. Roberts, “Oppressive and Empowering #Tagmarks,” in Feminist Cyberlaw, eds. Meg Leta Jones & Amanda Levendowski (University of California Press, 2024), 50-61
David A. Simon, Gatekeeping Drugs (August 21, 2024). Northeastern University School of Law Research Paper Forthcoming. (This paper was supported by the 2023-2024 Thomas Edison Innovation Law and Policy Fellowship.)
The following post was originally published on the Patently-O blog and is cross-posted here with permission from both Patently-O and the author.
Senators aim to rein in digital replicas with the “NO FAKES” Act which proposes a limited federal right to control one’s likeness using some DMCA-like notice-and-takedown elements.
This week, Senators Blackburn, Coons, Klobuchar, and Tillis introduced the bipartisan “NO FAKES” Act in Congress, a bill that has been under discussion for months and is intended to provide centerpiece legislation addressing the problem of digital replicas. The recording industry (RIAA) and the actors’ union (SAGAFTRA) have been the leading proponents of such a law. Senate Judiciary staff led a process with those groups–and with the Motion Picture Association (MPA)–that went through a long series of drafts. AI companies were also part of the drafting process.
The bill is substantively complex and structurally complicated, partly the result of so many cooks in the kitchen. What follows here are only the bill’s basics – as well as some concerns.
The bill defines a “digital replica” as a “computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual” and then gives that individual the exclusive “right to authorize the use of the voice or visual likeness of the individual in a digital replica.”
The individual’s exclusive right applies to the “production, publication, reproduction, display, distribution, transmission of, or otherwise making available to the public, a digital replica” at least where the activity in question affects interstate commerce. But then there is an important caveat – liability comes only when the exclusive right is violated with knowledge that the thing the person used was a digital replica and that that replica was unauthorized.
Post-mortem rights
The NO FAKES digital replica right survives the individual for a minimum of life+10 and a maximum of life+70. How long the descendible right lasts beyond the initial 10-year period depends on continued “authorized public use of the voice or visual likeness of the individual.” The bill proposes that the Copyright Office will maintain a registry/database of these post-mortem rights.
Protecting the individual from bad deals
During the individual’s lifetime, the digital replica right cannot be assigned – it is inalienable – but it can be licensed; such a license must be in writing and signed by the individual, must “includes a reasonably specific description of the intended uses of the applicable digital replica,” and cannot have a term of more than 10 years. A license for a minor’s digital replica can have a term of no more than 5 years and must terminate when the person turns 18. All those requirements do not apply “if the license is governed by a collective bargaining agreement that addresses digital replicas” – a nod to the deal that ended SAGAFTRA’s 2023 strike against the film studios.
What about the First Amendment?
As with more general rights of publicity and privacy, the drafters were keenly aware of the difficult problem of balancing the legitimate interests of individuals in their own likenesses with others’ freedom of expression. The present bill has exceptions to the exclusive right for using a digital replica in:
“a bona fide news, public affairs, or sports broadcast or account”;
“a documentary or in a historical or biographical manner, including some degree of fictionalization”;
“bona fide commentary, criticism, scholarship, satire, or parody”; or
“fleeting or negligible” usage.
For myself, I’m most concerned that only the “documentary . . . historical or biographical manner” exception is conditioned by the requirement that the usage not “create[] the false impression that the work is an authentic sound recording, image, transmission, or audiovisual work in which the individual participated.” The presence of this limitation in one exception but not the others could be interpreted by courts to mean that the use of a digital replica in “commentary” “satire” or a “news broadcast” can create the false impression that the individual participated. Given how courts have recognized that protecting consumers from deception is a legitimate basis to restrict free expression, I would think it better to condition all the exceptions on not confusing, misleading, or deceiving consumers.
What performers, record labels, and online platforms get
One criticism of this bill is going to be that there are already all sorts of causes of action the victim of a digital replica can bring, but folks who say that are missing what this bill really aims to do. The NO FAKES Act introduces a takedown system in which “online service” providers have a safe harbor from liability if they disable access to an unauthorized digital replica after receipt of a notice with requirements similar to the DMCA; the online service needs to remove or disable access “as soon as is technically and practically feasible” – language that reflects some bad experiences content owners have had with the DMCA’s “expeditiously” requirement.
“Online service” is given a broad definition to include user-generated content platforms, social media, and digital music providers, but seems to exclude transmission ISPs that would qualify for the DMCA’s 512(a) safe harbor.
Indeed, since liability is triggered only when someone has knowledge about the unauthorized digital replica, this bill is really directed at those online services who will receive these notices.
What AI companies get
One troubling part of this bill is that “products and services capable of producing digital replicas” seem to get a carte blanche shield from secondary liability – without even the limited role that ISPs must undertake to enjoy safe harbors in the DMCA. Given that we know that AI companies can and do use “guardrails” to prevent the generation of at least some copyright infringing materials, it’s disappointing that the drafters haven’t imposed at least minimal requirements to enjoy the safe harbor, i.e. that companies deploy measures to prevent the generation of digital replicas for whom the companies receive notices as well as individuals listed on the registry that the Copyright Office will maintain.
Fortunately, the bill denies this liability shield to products or services intended to produce digital replicas and deepfakes, using a framework similar to 17 U.S.C. 1201(a)(2). So some future service like clone-glen-powell.com or taylorswiftserenadesyou.net won’t get an automatic hall pass.
What about state laws?
Existing state laws on digital replicas are not preempted, including the new laws that will come online January 1 in California, New York, and Illinois. State laws addressing sexual deep fakes and election-related misformation are also not preempted. The bill does preempt new state laws “for the protection of an individual’s voice and visual likeness rights in connection with a digital replica . . . in an expressive work,” but for practical purposes the No FAKES Act will produce a regime like trademark and trade secrecy, where there may be overlapping, but distinct state and federal claims.
Why is this happening now?
Normally you might expect the record labels, as major content owners, to have their interests more aligned with the motion picture studios, not the actors’ union. A keen observer might ask, what is going on?
The answer is simple. We’re in a replay of the early days of the internet. In those days, music was the canary in the coal mine for online digital piracy – simply because it was far easier to reproduce and distribute .mp3 files than full-length television shows and feature films. We’re at a similar moment now when AI-generated sound recordings are passable as music; at least one music AI developer, Suno, has admitted that they can produce outputs that replicate real artists’ vocals. Meanwhile, actors are fighting abusive uses of digital replicas in everything from deep fake porn to fairly mainstream advertising.
Is this bill perfect? No, far from it. But the takedown system it envisages could go a long way to suppressing the market for what the FBI calls “synthetic content” — synthetic content that deceives consumers and replaces creative professionals. That itself might make AI development a little bit less like the digital Wild West. To most of us, that would be a good thing.
* The blog post below and the law review article it links to are the individual thoughts and views of the author and should not be attributed to any entity with which she is currently or has been affiliated.
Despite a recent decision from the Beijing Internet Court, there is growing consensus that artificial intelligence (AI) can be used as a tool, but that a human author must have ideated a copyrighted work and that the resultant creative work is the outcome of that person’s intellect and personality. Despite some international convergence on this issue, however, it is worth reviewing the backdrop of this issue and uncovering some of the more vexing practicalities regarding the level of creative autonomy a person must exercise to receive a copyright registration. The threshold for creativity in copyright law is low across jurisdictions, but how low is it? Are fifty binary choices enough to confer authorship? Are 624 generative AI prompts enough? Similar to other areas of copyright, such as the idea-expression dichotomy, or the unpredictability of the U.S. fair use doctrine, there are almost no bright lines to be drawn in the context of AI.
In a forthcoming paper, I review the law and the jurisprudential landscape on AI “authorship,” as well as academic commentary on the topic, and conclude that the bedrock principles of copyright law would not be served by permitting an acknowledgment of an AI system or algorithm as an author. Although AI is a groundbreaking, even revolutionary, technology, the ways in which it challenges the traditional contours of copyright law are not entirely new. We know from the New York Bridgeman decision in 1999 that skill and labor – and even creativity – in the production stage of creativity are meaningless unless the output (or in copyright parlance, the “work”) exhibit creativity. The Court of Justice of the European Union (CJEU) and United States courts point to an “author’s own intellectual creation” and a “modicum of creativity,” respectively, in ascertaining whether something merits copyright protection. As the European Union implements the world’s first AI Act, and as the U.S. Copyright Office reviews applications for AI-assisted works, underscoring the importance of human authorship is paramount to ensuring laws and courts are well-equipped with the rationale underlying the important distinction between human creativity and machine-generated outputs.
Human authorship has always been, and continues to be, a foundational requirement for copyright protection to subsist in a work. AI challenges this prerequisite but does not overcome it. The output of generative AI is not discernibly different from the output of a human author and therefore benefits from a false sheen of originality. While some argue that prompt engineering fulfills the requirements of originality––as noted above, the threshold for originality is quite low across jurisdictions––prompting still lacks the requisite link between human creativity and the resulting work to receive copyright protection. International copyright treaties and domestic copyright law must be interpreted as aiming to provide copyright’s exclusive rights to works that reflect human originality and that reward human beings. A 2006 New York district court case outlined three means by which photographs can demonstrate originality: rendition, timing, and creation of the subject. My paper proposes that each of these mechanisms, understood through the prism of generative AI, remains applicable for analyzing whether human originality subsists in a given work. Originality exists along a sliding scale, resulting in a mix of thin copyrights and medium copyrights and thick copyrights. While it may not always be the case as the technology evolves, the current relationship between generative AI and its user results in outputs that are generally too detached from the user’s creativity to satisfy the requirements of copyrightable authorship. Generative AI remixes the content on which it has been trained according to its algorithm and prompts. Copyright protection is a privilege and it can only be earned by humans by way of their own intellectual creations.
Joshua Kresh
Mark F. Schultz
The high cost of some pharmaceuticals is a complex issue, but the Federal Trade Commission’s (FTC’s) most recent criticism of pharmaceutical patents’ role is misguided. The 
Despite a