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C-IP2 2022 Spring Progress Report (December 2021-February 2022)

Sean O'ConnorGreetings from C-IP2 Faculty Director Sean O’Connor

As we move further into spring of 2022, we are simultaneously emerging––gradually and hopefully––from the global health crisis of these past two years. In-person gatherings and events are steadily resuming in the Washington, D.C., area and in many places around the world, and it’s wonderful to share the same spaces once again with friends and colleagues, old and new. Early last December, C-IP2 held our first large-scale in-person event since 2020 with our hybrid conference on Intellectual Property and Innovation Policy for 5G and the Internet of Things. Excepting January 2022’s Edison Fellowship meeting and precautions taken against the Omicron variant, we have been moving ahead with primarily in-person programming for 2022, and we hope you will keep an eye on our website and email communications for opportunities to join us and engage with us. In the meantime, our Spring 2022 Progress Report below (spanning December 2021 through February 2022) will catch you up on the activities and scholarship of C-IP2 and affiliates in recent months, and we continue to wish you good health in the months to come.

C-IP2 Hosted & Co-Hosted Events

Academic ConferenceOn December 2-3, 2021, C-IP2 hosted an academic conference on 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things. The event was both held in person and livestreamed from George Mason University, Antonin Scalia Law School, and featured as speakers many of the contributors for the upcoming corresponding book, 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things, which is being co-edited by Professors Jonathan Barnett and Sean O’Connor and has been accepted for publication by Cambridge University Press (Forthcoming 2022). Thomas Edison Innovation Law and Policy FellowshipOn January 20-21, 2022, C-IP2 hosted the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship. The Edison Fellows presented substantially revised drafts of their research papers and received feedback from Distinguished Senior Commentators and other Fellows. The plan is for Fellows to submit their final papers to journals for the March submission period.

News & Speaking Engagements

We are pleased to welcome and announce the scholars and practitioners who have joined C-IP2 over the course of December 2021 through February 2022: Tun-Jen Chiang as a Senior Scholar; Gregory Dolin, John Liddicoat, and Amy Semet as Scholars; and Theo Cheng, Stephanie Semler, and Eric Solovy as Practitioners in Residence. The Antonin Scalia Law School winter graduation was held on December 16, 2021, at Eagle Bank Arena in Fairfax, VA. C-IP2’s December 2021 5G conference was mentioned by ThinkBRG, which noted BRG Executive Chairman David J. Teece’s participation in a panel on “Global Differences in Antitrust Treatment of SEPs and SSOs.” C-IP2 was mentioned in a February story on Broadway World, highlighting their upcoming April 2022 event with GRAMMY Award-winning composer Maria Schneider, co-hosted with George Mason University Center for the Arts. In February, Jeffrey E. Depp—a 2022-2023 Thomas Edison Innovation Law and Policy Fellow with C-IP2 and PhD student at the University of Pittsburgh Graduate School of Public and International Affairs—received the Volunteer of the Year Award from AUTM. Professor Sean M. O’Connor posted his book chapter “AI Replication of Musical Styles Points the Way to an Exclusive Rights Regime,” which is part of the upcoming book Research Handbook on Intellectual Property and Artificial Intelligence (Edward Elgar 2022 Forthcoming), edited by Dr. Ryan Abbott. 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)

    • Served as a commentator at the University of Akron IP Scholars Forum on December 9-10, 2021
    • Scholarly contributions to advancing copyright law cited in a December 16 IPWatchdog article on The Year in Copyright: From Google v. Oracle to the Takings Clause by Devlin Hartline, Legal Fellow at the Hudson Institute’s Forum for Intellectual Property in Washington, D.C. (Items cited include: March 27, 2018, organizing and drafting IP scholars briefing in a decade of briefing culminating before the Supreme Court in Google LLC v Oracle America, Inc. opinion; a May 9, 2019, IPWatchdog article with the Copyright Alliance’s Kevin Madigan on the CASE Act; 2018 scholarly article on a small copyright claims tribunal; and research and analysis cited in the August 2021 U.S. Copyright Office’s Copyright and State Sovereign Immunity report)
    • On January 13, participated in a Copyright Alliance meeting to discuss the December 30 CASE Act notice of proposed rulemaking (NPRM)
    • In February, along with the Arts & Entertainment Advocacy Clinic, filed initial and reply comments by IP scholars regarding Law Student and clinic participation in representation of individuals and small businesses before the CCB pursuant to the CASE Act
    • Quoted in a February 11 article on The Verge, “Artists Are Playing Takedown Whack-A-Mole To Fight Counterfeit Merch”

Jonathan Barnett (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)

    • Helped to organize and participated in C-IP2’s December conference on 5G and IP as a co-editor with Professor Sean O’Connor on the upcoming corresponding book, 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things
    • On January 19, presented at a webinar hosted by the 4iP Council (Jan. 20, 2022), “Solution in Search of a Problem: The Economic Case Against Licensing Negotiation Groups in the Internet of Things”
    • On February 4, co-authored and submitted comments with fellow scholars of law, economics, and business regarding the Draft USPTO, NIST, & DOJ Policy Statement on Licensing Negotiations and Remedies for Standard Essential Patents Subject to Voluntary F/RAND Commitments
    • Mentioned in a February 7 Foss Patents blogpost, “In its replies to Apple’s public interest statements, Ericsson points the ITC to Apple’s 30% app tax and market definition in Epic Games case”

Chief Judge Susan G. Braden (Court of Federal Claims (Ret.); C-IP2 Jurist in Residence)

    • On December 8, attended the USPTO Private Patent Advisory Committee Meeting on Congressional Legislation
    • On January 19, took part in Designated Chair of Artificial Intelligence Tools and Information Technology Subcommittee, USPTO Private Patent Advisory Committee
    • On January 27, joined Meeting with Matthew Such, Group Leader, Patent Product Line Lead, Office of Patent Information Management, USPTO re AI priorities for 2022
    • On January 31, completed Working Draft of “Section 1498 (a): NOT A RX FOR LOWER PHARMA PRICES” (out for academic comment), which was co-authored with Joshua Kresh, C-IP2 Managing Director
    • In February, was appointed to the 2022 National Vaccine Law Conference Committee
    • On February 8, attended the USPTO Private Patent Advisory Committee Innovation, Expansion, and Outreach Subcommittee Meeting
    • On February 9, attended the Executive Session of USPTO Private Patent Advisory Committee
    • On February 10, attended the USPTO Private Patent Advisory Artificial Intelligence Tools and Information Technology Subcommittee Meeting
    • On February 25, met with the Lead Business Development SAS US Alliances/Channels Team

Terrica Carrington (C-IP2 Practitioner in Residence; VP, Legal Policy and Copyright Counsel, Copyright Alliance)

    • Helped organize and co-host a December 6 event (sponsored by the Copyright Alliance and the U.S. Chamber of Commerce’s Global Innovation Policy Center and Equality of Opportunity Initiative) titled “A Conversation on Diversity and Inclusion in Copyright,” where speakers and attendees discussed how to increase participation from underrepresented communities in the copyright sector industries and professions
    • Nominated in January 2022 for the G. Hamilton Loeb Award for Pro Bono Excellence in recognition of her work to support the arts
    • Quoted in a January 11 article by Franklin Graves on Tubefilter, “Here Are The Legal Issues Affecting Content Creators in 2022”

Theo Cheng (C-IP2 Practitioner in Residence; Arbitrator and Mediator, ADR Office of Theo Cheng LLC; Adjunct Professor, New York Law School)

    • In December, his article “Conducting Remote Mediations During the Pandemic” was published in the New York State Bar Association Trial Lawyers Digest
    • On December 22, gave a two-hour presentation on “Diversity, Implicit Bias & Cross-Cultural Skills in ADR” to the court staff at the Supreme Court of New York, Appellate Division, Second Department
    • Joined C-IP2 as a Practitioner in Residence in January
    • On January 11, was a co-presenter on a program entitled “Nonparty Discovery in U.S. Arbitrations: The Legal Challenges & Differences from Litigation” for the New York State Bar Association that was sponsored by the Dispute Resolution Section Domestic Arbitration Committee
    • On February 23, moderated a panel entitled “Diversity, Inclusion and Elimination of Bias in Evidentiary Analysis and Decision Making.” The panel was part of an all-day program held by the New York County Lawyers Association for New York’s Part 137 Fee Disputes and Conciliation Arbitration Training Program

Tun-Jen Chiang (C-IP2 Senior Scholar; Professor of Law, George Mason University, Antonin Scalia Law School)

    • Joined C-IP2 as a Senior Scholar in January

Eric Claeys (C-IP2 Senior Fellow for Scholarly Initiatives & Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

    • On January 20-23, co-organized and participated in the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship

Gregory Dolin (C-IP2 Scholar; Associate Professor of Law, University of Baltimore School of Law)

    • Joined C-IP2 as a Scholar in January

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)

    • On January 20-21, served as a Distinguished Senior Commentator during the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship

Tabrez Ebrahim (C-IP2 Scholar; Associate Professor, California Western School of Law)

    • Professor Ebrahim will be joining Lewis & Clark Law School and the Center for Business Law and Innovation [Lewis & Clark Law School, Leiter Law School] this coming Fall 2022
    • In January, gave a presentation entitled “Datafication & Data Governance at the Patent Office” at the virtual AALS Annual Meeting: New Voices in Intellectual Property Law Scholarship
    • Joined a research project with the University of Arizona’s Center for Quantum Networks (January 2022-Present) as a Fellow (Thrust 4: Societal Impact of the Quantum Internet)
    • On February 4, presented on a panel entitled Data Privacy & Democracy at the Lewis & Clark Law School’s 3rd Annual Data Privacy Forum
    • On February 19, presented a draft article entitled An Information Theory of Data Governance at the Patent Office as part of the 19th Works in Progress for Intellectual Property Scholars Colloquium (WIPIP 2022), co-hosted by St. Louis University School of Law and University of Missouri School of Law

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 December, served as Moderator and Program Coordinator for Business Law Basics – Lost in Tokenization: Legal Implications of Non-Fungible Tokens on Finance, Art, Property, and Culture, American Bar Association Business Law Section [This 90-minute CLE is free-on-demand for all ABA Business Law Section members]
    • In December, developed a CLE program which he moderated entitled Business Law Basics – Lost in Tokenization: Legal Implications of Non-Fungible Tokens on Finance, Art, Property, and Culture, American Bar Association Business Law Section
    • In January, presented Legal Strategies for the Metaverse and the Evolving Media Landscape (American Bar Association, Business Law Section Cyberspace Law Committee, Cyberspace Law Institute)
    • Has contracted to publish a new book entitled Teaching and Learning in the Metaverse: Using Online Platforms, Games, NFTs, and Blockchain in Education with Rowman & Littlefield (2023)
    • On February 22, gave a virtual presentation on Understanding the Evolving Media Landscape for Nova Southeastern University’s Lifelong Learning Institute
    • On February 22, received a “Top Ten” Download from SSRN.com for six electric journals. His draft article, Legal Implications of a Ubiquitous Metaverse and a Web3 Future, is available at SSRN
    • Latest book, Parenting for the Digital Generation – The Parent’s Guide to Digital Education and the Online Environment (Rowman & Littlefield 2022), is available for order both in stores and online [Rowman & Littlefield, Amazon, Barnes & Noble]

Christopher Holman (C-IP2 Senior Fellow for Life Sciences & Senior Scholar; Professor of Law, University of Missouri-Kansas City School of Law)

    • Spoke at the FDA-PTO Roundtable at the George Washington University Law School on December 21
    • On January 20-21, served as a Distinguished Senior Commentator during the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship
    • On January 21, spoke as a panelist at the FDA-PTO Roundtable on patents and pharmaceutical pricing at the George Washington University Law School
    • On January 28, spoke on a panel entitled “FDA and Patents? FDA’s Letter to the USPTO and Possible Next Steps” as part of the Food, Drug & Cosmetic Law Section at the New York State Bar Association Annual Meeting
    • On February 18, presented a draft article entitled Evolution of the Antibody Patent as part of the 19th Works in Progress for Intellectual Property Scholars Colloquium (WIPIP 2022), co-hosted by St. Louis University School of Law and University of Missouri School of Law

Camilla A. Hrdy (C-IP2 Scholar; Research Professor in Intellectual Property Law, University of Akron School of Law)

    • Article “Abandoning Trade Secrets” (with Mark A. Lemley), 72 Stan. L. Rev. 1 (2021) was cited by a U.S. District court in Providence Title Co. v. Truly Title, Inc., et al., No. 4:21-CV-147-SDJ, 2021 WL 2701238 (E.D. Tex. July 1, 2021)
    • Article “The Trade Secrecy Standard for Prior Art” (with Sharon K. Sandeen), 70 Am. U. L. Rev. 1269 (2021) was selected as the featured patent law article for American University Law Review’s annual Federal Circuit Symposium Issue
    • On December 10, new article, “The Value in Secrecy,” was identified as one of the best works of recent scholarship relating to intellectual property law by Jotwell: The Journal of Things We Like (Lots) [SSRN]
    • On December 13-14, attended The Sedona Conference WG12 Annual Meeting 2021 in Phoenix, AZ. Prof. Hrdy is a Member of Brainstorming Group on “What Can and Cannot Be a Protectable Trade Secret?”
    • Authored a January 12 post on the Written Description blog entitled “Jessica Litman: Who Cares What Edward Rogers Thought About Trademark Law?”
    • Mentioned in a February 10 Law360 article, “Hytera Indictment May Set New Path For Trade Secrets Cases”

Dmitry Karshtedt (C-IP2 Scholar; Associate Professor of Law, The George Washington University Law School)

    • Co-authored a December 22 amicus brief on Amgen Inc. v. Sanofi
    • Quoted in a January 12 BloombergLaw article by Ian Lopez, Hikma Drug Label Win Still Leaves Generics on Hook for Liability
    • Spoke at the FDA-PTO Roundtable at the George Washington University Law School on January 21
    • Quoted in a January 27 Law360 article by Ryan David, Breyer’s Rulings Shaped By Wariness Of Intellectual Property
    • On February 18, presented a draft article entitled An Information Theory of Data Governance at the Patent Office as part of the 19th Works in Progress for Intellectual Property Scholars Colloquium (WIPIP 2022), co-hosted by St. Louis University School of Law and University of Missouri School of Law
    • Placed in-progress paper, Pharmaceutical Patents and Adversarial Examination in The George Washington Law Review, forthcoming 2023

Hon. Prof. F. Scott Kieff (C-IP2 Senior Scholar; Fred C. Stevenson Research Professor, The George Washington University Law School)

    • Gave the keynote address at C-IP2’s December conference on 5G and IP as a contributor to the upcoming corresponding book, 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things

Dr. John Liddicoat (C-IP2 Scholar; Senior Research Associate and Affiliated Lecturer, Faculty of Law, University of Cambridge)

    • Joined C-IP2 as a Scholar in January 2022
    • On January 20-21, participated as an Edison Fellow during the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship
    • Chaired a February 10 seminar hosted by Cambridge University’s Centre for Intellectual Property and Information Law (CIPIL), presented by speaker David Webb (Herbert Smith Freehills), and entitled FRAND: Where are we: And where are we going? (read more here and click here to view the recording on YouTube)

Joshua Kresh (C-IP2 Managing Director)

    • On January 20-21, co-organized and participated in the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship
    • On January 31, completed Working Draft of “Section 1498 (a): NOT A RX FOR LOWER PHARMA PRICES” (out for academic comment), which was co-authored with Judge Susan G. Braden

Daryl Lim (C-IP2 Senior Scholar; Professor of Law and the Director of the Center for Intellectual Property (IP), Information & Privacy Law, University of Illinois Chicago School of Law)

    • On December 9, was a Discussant during the virtual Fordham IP Institute Global IP Roundtable
    • On December 14, was a Moderator during the virtual 4th edition of the Paris conference on Standard Essential Patents (SEPs) and FRAND (Session 1)
    • Was a Speaker for “Can Computational Antitrust Succeed?” during the virtual Computational Antitrust: Exploring Antitrust 3.0 conference at the Stanford Center for Legal Informatics, December 13-15, 2021
    • On December 17, was a Discussant/Commentator at the Centre for Financial Regulation and Economic Development (CFRED) at the Chinese University of Hong Kong Law (CUHK Law) and the Center for Law and Intellectual Property at Texas A&M University School of Law’s workshop on Anti-suit Injunctions and FRAND Litigation in China
    • In a December 28 IPWatchdog piece, provided his choices for “the biggest moments in IP for 2021”
    • Mentioned in a February 3 article by Penn State, “Penn State Dickinson Law announce new resident faculty appointment”
    • On February 8, spoke on “What can Copyright Law Learn from Design Law?” during the virtual ABA-IPL Design Rights Committee Fireside Chat

Hina Mehta (C-IP2 Practitioner in Residence; Director, Office of Technology Transfer, George Mason University)

    • Attended the February 20-23 Association of University Technology Managers Conference where she served as instructor for a half day professional development course on Negotiations

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)

    • Spoke at the FDA-PTO Roundtable at the George Washington University Law School on December 21
    • On January 20-21, participated as an Edison Fellow during the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship
    • Spoke at the FDA-PTO Roundtable at the George Washington University Law School on January 21

Sean M. O’Connor (C-IP2 Faculty Director; Faculty Director, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

    • On December 1, gave an LLC presentation with Antonin Scalia Law School’s Dean Ken Randall to George Mason University’s Green Machine
    • Helped to organize and spoke at C-IP2’s December conference on 5G and IP as a co-editor with Professor Jonathan Barnett on the upcoming corresponding book, 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things
    • On January 20-21, co-organized and participated in the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship
    • On January 23, gave a virtual Texas A&M IP Management talk
    • On January 31, spoke at a seminar as part of the Loyola Law School’s Intellectual Property and Information Law Speaker Series at Loyola Marymount University in Los Angeles, California

Kristen Jakobsen Osenga (C-IP2 Senior Scholar; Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

    • Spoke at C-IP2’s December conference on 5G and IP as a contributor to the upcoming corresponding book, 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things
    • On January 5, served as a senior commentator in an IP Works in Progress session for a paper by Tabrez Ebrahim at the Association of American Law Schools (AALS) Annual Meeting
    • On January 7, served a moderator for a Federalist Society Works in Progress Mini-Conference panel
    • On January 25, participated in a Hudson Institute roundtable about national security & IP
    • On February 4, was cited in and submitted comments with fellow scholars of law, economics, and business regarding the Draft USPTO, NIST, & DOJ Policy Statement on Licensing Negotiations and Remedies for Standard Essential Patents Subject to Voluntary F/RAND Commitments
    • Filed a brief with Professors Jonathan Barnett, Richard Epstein, and Adam Mossoff to the International Trade Commission about the importance of exclusionary order for SEPs and public interest in the Ericsson v. Apple case. Filing was mentioned in a February 7 Foss Patents blogpost, “In its replies to Apple’s public interest statements, Ericsson points the ITC to Apple’s 30% app tax and market definition in Epic Games case”
    • Spoke on a February 16 panel entitled, “Theory to Doctrine: Should Specific Antitrust Doctrines or Cases Be Revisited in the Digital Age?” The panel was part of the Big Tech and Antitrust Conference, and sponsored by the Gibbons Institute of Law, Science & Technology, and the Institute for Privacy Protection at Seton Hall Law School.
    • On February 18, participated in the 15th Annual Evil Twin Debate against Jorge Contreras (Presidential Scholar and Professor of Law, University of Utah S.J. Quinney College of Law). Profs. Contreras and Osenga debated “Efficient Infringement: Awful or Awesome?”

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)

    • On December 2, participated in the Global Trade and Innovation Policy Alliance’s 2021 Global Trade and Innovation Policy Alliance Annual Summit in Washington, D.C., where he spoke on trends in national regulation of Video on Demand Streaming Services worldwide
    • On December 16, spoke in a MacDonald-Laurier Institute (Canada) webinar regarding the appropriate regulatory and IP policies to avoid supply chain disruptions in the manufacturing and distribution of vaccines for the next pandemic
    • Spoke in January 2022 at an event hosted by UC Berkeley and the Sunwater Institute on empirical methods for measuring the strength of national IP systems
    • On January 20-21, served as a Distinguished Senior Commentator during the third and final meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship
    • On January 28-29, participated as a commentator at the Three Rivers IP Colloquium
    • On February 8, spoke at a webinar entitled “Extending Bio-manufacturing Networks in Emerging Regions,” sponsored by Bobab (an Africa-based NGO) and the Innovation Council (a Swiss NGO), about creating an enabling environment for manufacturing vaccines and therapeutics in Africa and other emerging regions
    • Quoted in a February 11 article on The Verge, “Artists Are Playing Takedown Whack-A-Mole To Fight Counterfeit Merch.”
    • On February 18, spoke at an online roundtable sponsored by the National Law University of Bangalore and the Government of India about drafting a trade secret statute for India

Amy Semet (C-IP2 Scholar; Associate Professor, University at Buffalo School of Law)

    • Joined C-IP2 as a Scholar in January 2022

Stephanie M. Semler (C-IP2 Practitioner in Residence; Adjunct Professor, George Mason University, Antonin Scalia Law School; Associate Attorney, Venable LLP; Supervising Attorney, Arts & Entertainment Advocacy Clinic)

    • Joined C-IP2 as a Practitioner in Residence in January 2022

Eric M. Solovy (C-IP2 Practitioner in Residence; Partner, Sidley Austin LLP)

    • In February, joined C-IP2 as a Practitioner in Residence
Scholarship & Other Writings

Jonathan Barnett, Does the Market Know Something the FTC Doesn’t?, Truth on the Market (February 10, 2022) Jonathan Barnett, The Economic Case Against Licensing Negotiation Groups in the Internet of Things (January 10, 2022). USC CLASS Research Paper Series No. CLASS22-1, USC Legal Studies Research Paper Series No. 22-1 [SSRN] Jonathan Barnett, How Not to Promote US Innovation (February 18, 2022), Truth on the Market Jonathan Barnett, Time To Nix Antitrust Policies That Fueled Blocked Nvidia Deal (February 10, 2022), Law360 Terrica Carrington, Copyright Office Activities in 2021: A Year In Review, Copyright Alliance (Jan. 11, 2022) Jon M. Garon, Book Chapter, “Legal Issues for Database Protection in the US and Abroad,” in Bioinformatics Law: Legal Issues for Computational Biology in the Post-Genome Era, ed. Jorge Contreras (Edward Elgar Publishing 2d Ed. 2021) (December 2021) Thomas Grant and Scott Kieff, 3 Safe Passages To Avoid Sanctions Double Binds, Law360 (February 9, 2022) Christopher M. Holman, Is the Chemical Genus Claim Really “Dead” at the Federal Circuit?: Part I, 41 Biotechnology Law Report 4 (2022) Camilla Hrdy, Jessica Litman: Who Cares What Edward Rogers Thought About Trademark Law?, Written Description (Jan. 12, 2022) Camilla Alexandra Hrdy, The Value in Secrecy (August 2, 2021). Fordham Law Review, Vol. 91, 2022 Dmitry Karshtedt and Mark A. Lemley and Sean B. Seymore, The Death of the Genus Claim, 35 Harv. J.L. & Tech. 1 (Fall 2021) [SSRN] Daryl Lim, AI, Equality, and the IP Gap, Southern Methodist University Law Review (Forthcoming 2022) Daryl Lim, Antitrust’s AI Revolution, Tennessee Law Review (Forthcoming 2022) Daryl Lim, Confusion, Simplified, Berkeley Technology Law Journal (Forthcoming 2022) Daryl Lim, Trademark Confusion Revealed: An Empirical Analysis, American University Law Review (Forthcoming 2022) Adam Mossoff and Jonathan Barnett, Comment of Legal Academics, Economists, and Former Government Officials on Draft Policy Statement on the Licensing and Remedies for Standard Essential Patents (February 4, 2022) Sean M. O’Connor, “AI Replication of Musical Styles Points the Way to An Exclusive Rights Regime” (February 15, 2022). Research Handbook on Intellectual Property and Artificial Intelligence, Ryan Abbott ed. (Edward Elgar 2022 Forthcoming) Kristen Osenga, More Antitrust Scrutiny Of Pharma Won’t Help Patient Health (February 16, 2022), Law360 Eric A. Priest, The Future of Music Copyright Collectives in the Digital Streaming Age (December 23, 2021), Columbia Journal of Law & the Arts, Vol. 45, 2021 (published February 2022) Philip Stevens and Mark Schultz, The role of intellectual property rights inpreparing for future pandemics, Geneva Network (February 28, 2022) Raju Narayana Swamy, COVID-19 Pandemic: Should Nations Resort to Compulsory Licensing of Drugs and Vaccines? An Analysis of the Effect of Such Pervasive Steps and Non-Market Price-Setting on the Economics and Political Economy of Creative Industries (October 26, 2021) [SSRN, LexForti] Shine (Sean) Tu and Christopher M. Holman, Technology Changes Drive Legal Changes for Antibody Patents: What Patent Examiners Can Teach Courts About the Written Description and Enablement Requirements (February 3, 2022) [Note: Offer has been accepted to publish this article in the Berkeley Technology Law Journal]

Categories
Progress Reports

C-IP2 2021 Winter Progress Report (September-November 2021)

Sean O'ConnorGreetings from C-IP2 Faculty Director Sean O’Connor

Warmest greetings for this holiday season. While 2021 has continued to be challenging, we are thankful that our community has stayed strong and thrived, nonetheless. We hope that if the pandemic has directly affected you or your loved ones, you are finding your way back to peace and health. As difficult as these times can be for many of us, I think we all know that it has been even harder for others. Take extra time this holiday season to be with loved ones and reflect on the things we do have.

In this Winter 2021 Progress Report, we include not only our news the last quarter of 2021, but also a recap of major developments this year.

This year we accomplished several major goals that have been in the works for a few years.

    • Rebranded the Center. While our old name had developed good brand recognition, it had outlived much of its original usefulness and did not fully reflect the range of work we do in the innovation ecosystem. It is also important to signal that intellectual property (IP) is a core part of such ecosystems.
    • Formed Advisory Board. A strong center such as ours needs the guidance of leaders in IP and innovation. We are so thankful that our “dream team” of influential leaders accepted our invitation to advise us. The Board includes:
      • Troy Dow, Vice President and Counsel, Government Relations and IP Legal Policy and Strategy, The Walt Disney Company
      • Mitch Glazier, Chairman and Chief Executive Officer, Recording Industry Association of America
      • Dr. Kirti Gupta, Vice President, Economic Strategy | Chief Economist, Qualcomm
      • Lawrence Horn, President and Chief Executive Officer, MPEG LA, LLC
      • Andrei Iancu, Partner, Irell Manella LLP, Los Angeles, California; Former Director, United States Patent & Trademark Office
      • David J. Kappos, Partner, Cravath, Swaine & Moore LLP, New York; Former Director, United States Patent & Trademark Office
      • John Kolakowski, Director, Patent Licensing, & Head of IP Regulatory Affairs, North America, Nokia Technologies
      • David Korn, Vice President, Intellectual Property and Law, Pharmaceutical Research and Manufacturers of America (PhRMA)
      • Keith Kupferschmid, President and Chief Executive Officer, Copyright Alliance
      • The Honorable Paul R. Michel, Former Chief Judge, United States Court of Appeals for the Federal Circuit
      • Karen Marangi, Director, Federal Government Affairs, RELX Group
      • Maria A. Pallante, President and Chief Executive Officer, Association of American Publishers; Former Register of Copyrights and Director, United States Copyright Office
      • The Honorable Randall R. Rader, Former Chief Judge, United States Court of Appeals for the Federal Circuit
      • Jon Santamauro, Senior Director, International Government Affairs, AbbVie
      • Hans Sauer, Deputy General Counsel, Vice President for Intellectual Property, Biotechnology Innovation Organization
      • Ian Slotin, Senior Vice President, Intellectual Property, NBCUniversal
      • Dr. Claudia Tapia Garcia, LL.M., Director IPR Policy and Legal Academic Research, Ericsson; President, 4iP Council
      • Karyn A. Temple, Senior Executive Vice President and Global General Counsel, Motion Picture Association; Former Register of Copyrights and Director, United States Copyright Office
      • The Honorable John F. Witherspoon, Professor and Director Emeritus, Intellectual Property Program, George Mason University Antonin Scalia Law School
    • Expanded Affiliate Scholars and Practitioners Network. This year we added a phenomenal group of leading academics and experienced practitioners such as Senior Fellows (directing our substantive area programming), Scholars (assistant and associate professors), Senior Scholars (full professors), Jurists in Residence, and Practitioners in Residence.
    • Virtual and hybrid events. We were able to transition all of our extensive programming to either fully online or hybrid format. This included the WIPO-U.S. Summer School on Intellectual Property, 2021 Annual Fall Conference, BioPharma Roundtable, Thomas Edison Innovation Law and Policy Fellowship meetings, and academic conference Intellectual Property and Innovation Policy for 5G and the Internet of Things.
2022 will be our tenth year as an academic center, and we are excited to see how C-IP2 continues to grow in the years ahead. Whether you participated in our events this year or in the past, generously donated or helped sponsor C-IP2’s activities, engaged with us in any way, or simply looked out for our emails in your inbox—thank you very much for your interest and support. All our best wishes for your health and happiness this holiday season and for the New Year 2022!
C-IP2 Hosted & Co-Hosted Events

Now in its seventh iteration, C-IP2‘s Thomas Edison Innovation Law and Policy Fellowship is a year-long non-resident fellowship program that brings together a group of scholars to develop research papers on intellectual property law and policy. Meeting 2 of the Fellowship was held September 23-24 at George Mason University Antonin Scalia Law School. This meeting was devoted to the Edison Fellows’ presenting their draft works-in-progress that they researched and drafted over the summer months of 2021. Each Edison Fellow received extensive feedback during presentation sessions devoted to each draft work-in-progress, including specific commentary from the Distinguished Senior Commentators. Guest Speakers for this meeting were Walter Copan (Senior Adviser and Co-Founder, “Renewing American Innovation,” CSIS; Vice President for Research and Technology Transfer, Colorado School of Mines; Former Director, NIST) and Andrei Iancu. For more information on this Fellowship, please visit our website.

Washington Lawyers for the Arts (WALA) and DC Shorts co-hosted a presentation and free clinic session with Scalia Law’s Arts & Entertainment Advocacy Clinic. The session, “Entertainment Law 101 for Filmmakers,” was held virtually on September 11 and featured WALA’s Brian Frankel, Maggie Gladson, John Mason, and the Clinic’s Prof. Sandra Aistars and Terrica Carrington.

On October 13-14, C-IP2 hosted our 2021 Virtual Annual Fall Conference, with Artificial Intelligence and Intellectual Property as this year’s theme. This year’s Annual Conference was structured around Professor Ryan Abbott’s forthcoming edited volume Research Handbook on Intellectual Property and Artificial Intelligence, which is being funded in part by a C-IP2 Da Vinci Grant. The conference included panels covering the current state of the art in AI and how the various types of IP rights interact with AI in diverse and sometimes controversial contexts––such as authorship of AI-generated works, changing inventive step analysis, data and text mining exceptions, deep fakes, and more. The event also featured keynote speakers Grimes and Jaron Lanier, who participated in a fireside chat with C-IP2 Faculty Director Sean O’Connor. The conference was connected with and featured many speakers who are writing for the upcoming Research Handbook on Intellectual Property and Artificial Intelligence in the Research Handbooks in Intellectual Property Series by Edward Elgar (Forthcoming 2022), an edited volume with contributions from an internationally leading group of authors from academia, practice, and government that provides a broad overview of research in AI & IP as well as a deep critical examination. Conference videos are available on C-IP2‘s YouTube channel.

On November 18, C-IP2 hosted an academic roundtable on Intellectual Property and Biopharmaceutical Policy in person at and virtually from George Mason University Antonin Scalia Law School. The roundtable consisted of presentations of works in progress on topics including evergreening and time to generic entry, regulatory exclusivities, the history of Bayh-Dole, potential trade secret waivers, and more.

News & Speaking Engagements

In September 2021, C-IP2 RAs and Scalia Law students Kyle Maxey and David Ward began fall internships with the Copyright Alliance.

In September, C-IP2, in conjunction with Mason’s Center for Government Contracting at the School of Business, won a Department of Defense IP study contract  on a study for Washington Headquarters Services covering the Defense Advanced Research Projects Agency (DARPA) and defense laboratories’ contracting and intellectual property management policies and their effects on commercialization of and further innovation in dual-use technology. Click here for more details.

Masami Kawase (JIPO) joined C-IP2 as a Visiting Scholar in September! While here, Masami will be working on a research project covering valuation of patents in the US and Japan.

In September, C-IP2 welcomed Professors Daryl Lim and Irina D. Manta as Senior Scholars.

C-IP2 Faculty Director Sean O’Connor and C-IP2 were featured in the “Research Spotlight” put out by Mason’s Institute for Digital InnovAtion (IDIA) in their “The Weekly” newsletter on October 10.

C-IP2 2021-2022 Edison Fellow and USPTO Attorney Advisor, Copyright Law and Policy Molly Torsen Stech moderated a panel discussion co-hosted by the USPTO and USCO on October 26 for the virtual conference Copyright Law and Machine Learning for AI: Where Are We and Where Are We Going?.

On October 26, Prof. Sandra Aistars and Terrica Carrington led Antonin Scalia Law School’s Arts & Entertainment Advocacy Clinic in co-hosting a virtual online chat and legal clinic on Copyright Law, Choreography, and Social Media with Washington Area Lawyers for the Arts (WALA). The event featured a fireside chat with the Copyright Alliance’s Terrica Carrington and David Hecht, founder of Hecht Partners LLP and attorney for celebrity choreographer JaQuel Knight, choreographer of Beyonce’s “Single Ladies” dance. The Arts & Entertainment Advocacy Clinic hosts similar events once or twice a semester, giving students a chance to give live advice to artists as part of their supervised legal clinic work.

In November 2021, C-IP2 welcomed Emily Michiko Morris (University of Akron School of Law Professor of Law and C-IP2 Scholar) as our Senior Fellow for Life Sciences.

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)

Jonathan Barnett (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)

    • On October 14, was a lead presenter of “Innovators, Firms, and Markets: The Organizational Logic of Intellectual Property,” hosted by Escuela de Gobierno, Universidad Adolfo Ibàñez
    • On October 15, was a panelist during the webinar “Toward a Deeper Understanding: Berkeley Asia IP SEP Talk Series 2021, The Role of Antitrust,” hosted by the University of California at Berkeley, School of Law
    • On October 28, was a panelist for “The Good, the Bad, and the Ugly – Outlook for the U.S. Patent System,” hosted by IPWatchdog

Chief Judge Susan G. Braden (Court of Federal Claims (Ret.); C-IP2 Jurist in Residence)

    • On October 8, attended and participated in capacity as a Judicial Adviser to the American Law Institute’s Working Group Review of Preliminary Draft 7 of the Restatement of Copyright Law
    • On October 12, attended and participated in the Board of Directors’ Meeting of the United Inventors Association
    • On October 15, attended and participated in the Board of Directors’ Meeting for LegalSifter, Inc. in Pittsburg, PA
    • On October 8, attended and participated in the IT and Artificial Intelligence Committee of the USPTO’s Private Patent Advisory Committee
    • On October 19, attended the Senate Intellectual Property Subcommittee hearing, “Pride in Patent Ownership: The Value of Knowing Who Owns a Patent”
    • On October 22, attended the USPTO’s presentation on DOCX
    • On November 5, attended and participated in the USPTO’s Private Patent Advisory Committee’s AI and IT Subcommittee and PTAB Subcommittee meetings
    • Also on November 5, attended and participated in Board of Directors meetings for LegalSifter, Inc. and Dustoff Technology, Inc.; both companies are engaged in using artificial intelligence and software in the commercial and defense sectors
    • On November 9, attended and engaged in the USPTO’s International Subcommittee and Legislative Subcommittee
    • On November 10, participated on a panel concerning the “Benefits of Arbitration in Resolving SEP Disputes,” hosted by IPWatchDog. The other panel members were Judge Randall Rader, former Chief Judge of the United States Court of Appeals for the Federal Circuit, and Judge David Folsom, former Chief Judge of the US District Court of the Eastern District of Texas
    • On November 12, attended and participated in the USPTO’s PPAC’s International Subcommittee meeting
    • On November 17, attended and participated in the USPTO’s Legislative Subcommittee meeting
    • On November 17, attended the Executive Session of the USPTO’s PPAC
    • On November 18, attended and participated in the Public Session of the USPTO’s PPAC
    • Also on November 18, attended and participated in CIP2’s academic roundtable on Intellectual Property and Biopharmaceutical Policy in Arlington, Virginia
    • Was a significant author on the USPTO’s 2021 Patent Public Advisory Committee (PPAC) Annual Report, which was made available to the public on November 30

Terrica Carrington (C-IP2 Practitioner in Residence; VP, Legal Policy and Copyright Counsel, Copyright Alliance)

Eric Claeys (C-IP2 Senior Fellow for Scholarly Initiatives & Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

    • On September 23-24, participated at C-IP2’s Thomas Edison Innovation Law & Policy Fellowship meeting at GMU Antonin Scalia School
    • On October 14, moderated a panel on “Owning AI and Protecting AI Output” during C-IP2’s 2021 Annual Fall Conference, Artificial Intelligence and Intellectual Property

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)

Tabrez Ebrahim (C-IP2 Scholar; Associate Professor, California Western School of Law)

Jon 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)

David Grossman (C-IP2 Practitioner in Residence; Senior Director of Technology Transfer & Industry Collaboration, Office of Technology Transfer, George Mason University)

    • Gave a presentation to the Bioengineering Alliance on October 29 on Innovation and Economic Development

Christopher Holman (C-IP2 Senior Fellow for Life Sciences & Senior Scholar; Professor of Law, University of Missouri-Kansas City School of Law)

    • On September 23-24, participated as a distinguished senior commentator at C-IP2’s Thomas Edison Innovation Law & Policy Fellowship meeting at George Mason University Antonin Scalia Law School
    • On November 18, participated in the C-IP2’s academic roundtable on Intellectual Property and Biopharmaceutical Policy in Arlington, Virginia

Camilla A. Hrdy (C-IP2 Scholar; Research Professor in Intellectual Property Law, University of Akron School of Law)

Dmitry Karshtedt (C-IP2 Scholar; Associate Professor of Law, The George Washington University Law School)

    • On September 10, presented a paper at European Policy for Intellectual Property Conference, Pharmaceutical Patents and Adversarial Examination, Madrid, Spain
    • Was quoted by Bloomberg Law in an article published on September 29, “Fed. Cir. Limits Review of Serial Patent Challenges (Correct)”
    • Started a new position as a Visiting Scholar at the Centre for Advanced Studies for Biomedical Innovation (CeBIL) at University of Copenhagen, Faculty of Law
    • Presented a paper on Pharmaceutical Patents and Adversarial Examination on October 5 at the Virtual Israeli IP Scholar Conference
    • On October 15, presented selected paper on Pharmaceutical Patents and Adversarial Examination at the virtual Fourth Junior Faculty Forum on Law & STEM, organized by the University of Pennsylvania Carey Law School
    • On October 25, gave a seminar on Copyright Volition as Causal Responsibility with Professor Sean A. Pager, hosted by Assistant Professor Vishv Priya Kohli at the Copenhagen Business School Law Colloquium
    • Gave an October 26 hybrid seminar on Pharmaceutical Patents and Adversarial Examination for the University of Copenhagen’s Centre for Advanced Studies in Biomedical Innovation Law (CeBIL) as part of a lunch seminar series
    • On November 10, spoke on a panel on “Patent Law at the Supreme Court: Where We Are and Where We’re Going,” which was hosted virtually by Los Angeles Intellectual Property Law Association (LAIPLA)
    • On November 16, gave a virtual presentation on “Pharmaceutical Patents and Adversarial Examination,” which was hosted by the Judge Paul R. Michel Intellectual Property American Inn of Court

Hon. Prof. F. Scott Kieff (C-IP2 Senior Scholar; Fred C. Stevenson Research Professor, The George Washington University Law School)

Joshua Kresh (C-IP2 Managing Director)

    • On September 23-24, participated in C-IP2’s Thomas Edison Innovation Law & Policy Fellowship meeting at GMU Antonin Scalia School
    • On October 13-14, participated in C-IP2’s 2021 Annual Fall Conference on Artificial Intelligence and Intellectual Property
    • Spoke at AIPLA’s 2021 Annual Meeting during the October 30 Closing Plenary Session “The Year in Review” and gave the Patent Litigation Year in Review Update
    • Concluded his term as Chair of AIPLA’s New Lawyers Committee and started as Vice Chair of AIPLA’s Patent Litigation Committee
    • On November 18, participated in the CIP2’s academic roundtable on Intellectual Property and Biopharmaceutical Policy in Arlington, Virginia

Daryl Lim (C-IP2 Senior Scholar; Professor of Law and the Director of the Center for Intellectual Property (IP), Information & Privacy Law, University of Illinois Chicago School of Law)

    • Joined C-IP2 as a Senior Scholar in September
    • On October 14, spoke on a panel on “Tech Policy in Artificial Intelligence” during C-IP2’s 2021 Annual Fall Conference, Artificial Intelligence and Intellectual Property
    • Speaker at an October 21 online event: Confusion Simplified, Indiana University Maurer School of Law, Bloomington, Issues in International Intellectual Property
    • Speaker at an October 22 event: Life after Google v. Oracle, Indiana University Maurer School of Law, Bloomington, Symposium Honoring Professor Marshall Leaffer
    • Discussant at an October 28 online event: Inventing Ideas: Patents, Prizes, and the Knowledge Economy, Classical Liberal Institute at the NYU School of Law
    • Spoke on “AI in the Automotive Sector” on November 19 at the 2021 ijiwei Automotive Semiconductor Ecosystem Summit, hosted online from Shanghai
    • Delegate during the virtual 37th Annual Meeting of the US Bar-EPO Liaison Council on November 3
    • Featured in a November 25 IPWatchdog article, Thank You! From Trademark Amendments to Mentors, IP Stakeholders are Grateful, noting the consensus between the biopharmaceutical and technology industries about patents for AI. Many thanks to Professor Lim for his mention of C-IP2’s 2021 Annual Fall Conference on Artificial Intelligence and Intellectual Property!

Irina D. Manta (C-IP2 Senior Scholar; Professor of Law, Hofstra University School of Law)

    • Joined C-IP2 as a Senior Scholar in September

Hina Mehta (C-IP2 Practitioner in Residence; Director, Office of Technology Transfer, George Mason University)

    • Participated in Accelerate 2022 at George Mason University October 19-20
    • On October 31, spoke at the National Institute of Technology, about “Technology Transfer: Bench to Market” at the International Conference on Women Leadership in Science and Technology

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)

    • On September 23-24, participated as an Edison Fellow at C-IP2’s Thomas Edison Innovation Law & Policy Fellowship meeting at GMU Antonin Scalia School
    • In November, accepted the position as C-IP2 Senior Fellow for Life Sciences
    • On November 18, participated in the CIP2’s academic roundtable on Intellectual Property and Biopharmaceutical Policy in Arlington, Virginia

Christopher M. Newman (C-IP2 Scholar; Associate Professor of Law, George Mason University Antonin Scalia Law School)

    • In October, participated in a meeting on American Law Institute’s Copyright Restatement project as part of the Members Consultative Group
    • On October 13, moderated a panel on “Artificial Intelligence – Challenges and Controversies” during C-IP2’s 2021 Annual Fall Conference, Artificial Intelligence and Intellectual Property

Sean M. O’Connor (C-IP2 Faculty Director; Faculty Director, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

    • Performed with the band, Buzzard Point Caucus, at the Sixth Annual LawRocks Washington D.C. on September 23 at the 9:30 Club to raise funds for Central Union Mission
    • On September 23-24, participated at C-IP2’s Thomas Edison Innovation Law & Policy Fellowship meeting at George Mason University Antonin Scalia Law School
    • On September 29, spoke on a panel hosted by George Mason University School of Business’ Center for Innovation and Entrepreneurship on “NIL (Name Image Likeness): Branding, Sports Marketing and Amateur Athletics” along with Dr. David J. Miller (CIE), Scott Lewis (Director of Strategic Initiatives, Zoomph), and Malcolm Grace (Deputy AD, Compliance and NCAA Governance, Intercollegiate Athletics at Mason)
    • Moderated the keynote fireside chat between Grimes (Music Producer, Songwriter, Singer, and Innovator in the digital and AI art space) and Jaron Lanier (Scientist, Musician, Visual Artist & Author of Who Owns the Future?) during C-IP2’s 2021 Annual Fall Conference on Artificial Intelligence and Intellectual Property, held online from October 13-14
    • On October 20, was featured with C-IP2 in the “Research Spotlight” of The Weekly, a newsletter put out by George Mason University’s Institute for Digital InnovAtion (IDIA)
    • On October 28, spoke on “Panel 1: Ownership, Transfer, and Tracing of Intellectual Property Rights – Part 1: Contracting in the Face of Uncertainty – Music Tourism, Royalties Trademark, and Copyright Law” in Jackson, Mississippi, as part of the Sixteenth Meeting of the American College of Business Court Judges, hosted by the Judicial Education Program of the Law & Economics Center, George Mason University Antonin Scalia Law School
    • Interviewed in October as a guest for a forthcoming episode of the Pedagogy Podcast, hosted by Dr. Jason Lee Guthrie, Assistant Professor of Communication and Media Studies at Clayton State University
    • On November 4, moderated a panel discussion entitled “Copyright: The New Normal” during UIC John Marshall Law School’s 65th Annual IP Law Conference in Chicago, IL
    • In November, joined George Mason University’s Intellectual Property (IP) Committee
    • On November 18, participated in the CIP2’s academic roundtable on Intellectual Property and Biopharmaceutical Policy in Arlington, Virginia

Kristen Jakobsen Osenga (C-IP2 Senior Scholar; Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

Yogesh Pai (C-IP2 Scholar; Assistant Professor, National Law University Delhi (NLUD); Co-Director, Centre for Innovation, Intellectual Property and Competition at NLUD)

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)

    • Mentioned in Akron Legal News on Sept. 3, 2021, in the report “Akron Law kicks off its Centennial celebration”
    • Spoke on a Geneva Network virtual panel on September 14 on “Why Trade Secrets Matter: “Covid vaccine manufacturing scale-up and the WTO’s proposed IP waiver”
    • On September 23-24, participated as a distinguished senior commentator at C-IP2’s Thomas Edison Innovation Law & Policy Fellowship meeting at GMU Antonin Scalia School
    • On October 12, spoke on a Geneva Network virtual panel on “Building the Gulf life science innovation economy: Lessons from the region and worldwide”
    • On October 14, moderated a panel on “Artificial Intelligence in the Life Sciences” during C-IP2’s 2021 Annual Fall Conference, Artificial Intelligence and Intellectual Property
    • Published a report for the Innovation Council, a Geneva Switzerland based NGO, entitled “Unprecedented: The Rapid Innovation Response to COVID-19 and the Role of Intellectual Property” (Innovation Council, December 2021). It is available on its own dedicated website at https://www.unpackingip.org. The report extensively documents the role of IP in the fight against COVID-19 and includes interviews with chief IP counsels and manufacturing experts from the world’s leading biopharma companies.
    • Participated in the annual meeting of the U.S.-India IP Dialogue in November, speaking on IP and global supply chain issues related to manufacturing and delivery of COVID-19 vaccines. Prof. Schultz serves as an expert in this multilateral Track 1.5 diplomatic dialogue held by the U.S. Chamber of Commerce, the Federation of Indian Chambers of Commerce and Industry, and the Governments of the United States and India.
    • On November 18, presented his research on IP and the fight against COVID-19 at CIP2’s academic roundtable on Intellectual Property and Biopharmaceutical Policy in Arlington, Virginia

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)

Scholarship & Other Writings

Jonathan M. Barnett, FTC strays from fact-based enforcement and rule of law, The Hill (Nov. 16, 2021)

Jonathan M. Barnett, “The Great Patent Grab,” in The Battle Over Patents: History and Politics of Innovation (ed. Stephen Haber and Naomi Lamoreaux, Oxford University Press 2021)

Joe Bennett and Sean M. O’Connor, “Determining the Composition,” in The Oxford Handbook of Music Law and Policy (ed. Sean M. O’Connor, Oxford University Press, published online July 2020)

C-IP2 Staff, C-IP2 2021 Fall Progress Report (June-August 2021), C-IP2 Blog (June 29, 2021)

Tabrez Y. Ebrahim, Guest Post: Patents In Islamic Law, Patently-O (Nov. 3, 2021)

Jon Garon, Article: Beyond the First Amendment: Higher Education’s Need for Procedural Safeguards to Mute Social Media Outrage, 40 Quinnipiac L. Rev. __ (2022) (forthcoming)

Jon Garon, Book Chapter: Legal Issues for Database Protection in the US and Abroad, in Bioinformatics: Legal Issues for Computational Biology in the Post-Genome Era (Jorge Contreras ed., Edward Elgar Publishing 2d Ed. 2021)

Jon Garon, Article: To be Seen but Not Heard: The Internet’s Impact on the Constitutional Right to Privacy, Speech, and Autonomy for Minors, __ Mecer L. Rev. __ (2022) (forthcoming)

Jon Garon, Book Chapter: Chapter 6: White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992), in Feminist Judgments: Rewritten Property Opinions (Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson, eds., Cambridge University Press 2021)

Camilly Hrdy, Courtney Cox on Trade Secrets and Lying, Written Description (Oct. 10, 2021)

Alan B. Morrison and Robert L. Glicksman and Dmitry Karshtedt and Mark A. Lemley and Joshua D. Sarnoff, Who is an Inferior Office, and Why Does it Matter? (February 18, 2021) (Yale Journal on Regulation Notice and Comment 2021)

Kristen Osenga, Big Tech’s IP theft a common problem with a high cost (Richmond Times Dispatch, Sep 26, 2021)

Kristen Osenga, Changing the Story: Artificial Intelligence and Patent Eligibility, Just Security (Oct. 25, 2021)

Kristen Osenga, COVID Vaccine IP Waiver: A Pathway to Fewer, Not More, Vaccines, released by the Regulatory Transparency Project of the Federalist Society (Oct. 28, 2021)

Kristen Osenga et al, Putting Innovation First: The “New Madison Approach” to Patent Licensing and Antitrust, released by the Regulatory Transparency Project of the Federalist Society (Oct. 19, 2021)

Kristen Osenga (2021), Striking the Right Balance: Following the DOJ’s Lead for Innovation in Standardized Technology (Akron Law Review: Vol. 54 : Iss. 3, Article 4)

Kristen Osenga, Time to Punish Big Tech’s IP Theft, AL DIA Opinion (Nov. 16, 2021)

Mark Schultz, Trade Secrecy and Covid-19: How trade secrets and other IPRs underpin innovation and manufacturing of Covid-19 Vaccines (Geneva Network, September 2021)

Ted Sichelman, The flawed case against noncompetes, The Hill (July 29, 2021)

Ted Sichelman, Should Noncompete Clauses for Executives Be Legal?, The Wall Street Journal (Sept. 22, 2021)

Eric M. Solovy and Deepak Raju, Recent Threats to Global Trade Secret Protection: Why Compulsory Licensing is Not (and Should Not Be) a Viable Legal Option (Ctr. for Intell. Prot. x Innov. Pol. Oct. 2021)

Categories
C-IP2 News Communications Progress Reports

CPIP Second Quarter Progress Report (March-May 2021)

Sean O'ConnorGreetings from CPIP Executive Director Sean O’Connor

We are cautiously optimistic as locations around the globe move towards greater control of the COVID pandemic. With luck, diligence, and generosity by public and private sectors around the world, we can all strive for vaccines to be more widely accessible and a future in which we can see other in person again.

Our Second Quarter Progress Report for 2021 covers CPIP’s and our affiliates’ events, news, scholarship, and more from March through May of this year. Our team has just wrapped up the fourth iteration of the WIPO-U.S. Summer School on Intellectual Property at CPIP, and we’re looking forward to in-person and hybrid programming in the coming months––look for details in our future progress reports and communications. We also have an exciting new name announcement coming later this week, and we’re looking forward to seeing what the rest of the year brings. In the meantime, I’m pleased to present this report on CPIP’s output from the past few months.

CPIP Hosted & Co-Hosted Events

On Wednesday, March 3, Arlington Economic Development’s BizLaunch network co-hosted a public online event entitled “Mason Law Clinic @BizLaunch: Which Entity is Right for Your Startup?” with George Mason University Antonin Scalia Law School’s Innovation Law Clinic, which is led by CPIP Executive Director Sean O’Connor. The virtual clinic addressed entrepreneurship and which business entities might best fit a business’s needs and attract investment. The panelists were Kenneth Silverberg, Senior Counsel at Nixon Peabody, and third-year Scalia Law students Mitch Gibson and Rebecka Haynes. A video of the event is available on CPIP’s YouTube page.

Now in its seventh iteration, CPIP’s 2021-2022 Thomas Edison Innovation Law and Policy Fellowship had its first virtual meeting on Thursday, March 18, and Friday, March 19. The Edison Fellowship is a year-long non-resident fellowship program that brings together a group of scholars to develop research papers on intellectual property law and policy. The Edison Fellowship is one of the centerpieces of CPIP’s mission to promote a better academic discussion about intellectual property rights with substantial scholarship produced from rigorous research that examines the moral and economic value of innovation. This year’s topics include: the PTAB, patent disclosures and artificial intelligence, levels of licensing of SEPs, SEPs vs NEPs in litigation, drug repurposing and generics, regulatory exclusivities, copyright law, privacy law, and the right of publicity.

From April 15-16, CPIP hosted a virtual roundtable discussion on Copyright and the Constitution. This private, invitation-only roundtable explored current and historical topics in Copyright and the Constitution. Proposals to address challenges faced by authors and owners of copyrighted works are frequently met by claims from opponents that the proposals do not pass constitutional muster. Such allegations are typically baseless; however, they delay and increase the costs of pursuing legislative and other measures intended to protect and promote the creativity of authors. This roundtable investigated what has transpired in the courts and public discourse as well as how these precedents might inform current and future efforts to protect the interests of the creative community and ultimately the public.

On May 4 and as part of Arlington Forward’s 20:20 Series, CPIP co-hosted a virtual panel, Protecting What You Build: Intellectual Property as the Entrepreneur’s Core Asset, with CPIP Directors Professor Sean O’Connor, Professor Sandra Aistars, and Joshua Kresh as the featured speakers. Great entrepreneurs execute on an innovative vision to improve the lives of others. Whether for profit or not for profit, the core of these ventures consists of particular solutions to tough problems. Such solutions in turn are combinations of information and practical methods, code or devices that are legally defined as intellectual property. Patents, copyrights, trade secrets and trademarks play different roles in defining the scope, title and rights to innovative solutions. This session guided attendees through these types of intellectual property and explained how experienced entrepreneurs rely on them to implement their visions. A video of the event is available on CPIP’s YouTube page.

News & Speaking Engagements

On Tuesday, March 30, the U.S. News & World Report Rankings came out, and CPIP is pleased to report that Scalia Law placed 41 overall and that the IP program went from 30 to 26. Also, the part-time law program at Scalia Law ranked No. 4 among public and private institutions.

Congratulations to all the Scalia Law students who graduated on May 15! This was a challenging year with unprecedented obstacles and we appreciate the students’ patience in adjusting to the online class format and doing their best. Well done and best of luck!

Further, CPIP would like to congratulate The Honorable Kimberly A. Moore, who became Chief Judge of the United States Court of Appeals for the Federal Circuit on May 22, 2021. She succeeded the Honorable Sharon Prost, who served as Chief Judge since May 31, 2014. Before joining the bench, Judge Moore was a faculty member of our George Mason University School of Law.

The Innovation Law Clinic, an affiliate of CPIP, was mentioned in the article “New pilot space debuts in Arlington” in Mason’s newsletter, The George, on May 27. The Clinic and other related innovation programs will temporarily be housed in a “showroom” location at Vernon Smith Hall until moving into the Mason Exchange building under construction here on the Arlington campus with a scheduled opening date of May 2025.

Sandra Aistars (CPIP Director of Copyright Research and Policy; Founding Director, Arts & Entertainment Advocacy Clinic; Clinical Professor of Law, George Mason University Antonin Scalia Law School)

    • Spoke at Scalia Law’s virtual Admissions Event on March 18
    • Along with filmmaker Lynn Hughes, was a featured speaker for an online clinic, “Copyright Law and the CASE Act,” on March 23. The event was organized under Prof. Aistars’ guidance by the Arts & Entertainment Advocacy Clinic at Antonin Scalia Law School and co-hosted with Washington Area Lawyers for the Arts (WALA). The clinic also conducted a live Q&A session for artists.
    • Spoke that same evening (March 23) on a virtual panel, “Representing Women: A Conversation on Representation for Artists and of Women in the Arts,” as part of the George Washington Law Association for Women’s March webinar series Nine: Portraits of Women in the Law
    • On April 6, moderated a virtual panel entitled “Artist Roundtable: Representing and Working with Artists in the Digital Age,” which was hosted by Scalia Law’s Arts & Entertainment Advocacy Clinic. The panel consisted of three creators on the forefront of art and creativity in the digital age: musician, singer, and songwriter David Lowery; film director, producer, and editorial photographer Stacey Marbrey; and author, communications professional, and copyright advocate David Newhoff. They spoke about their careers and what artists look for when partnering with legal counsel or other advocates, as well as issues that matter to artists and businesses in the arts today.
    • Spoke on the virtual panel “Platform Liability in the US and EU” during the 28th Annual Fordham IP Conference on April 9
    • Organized and signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Moderated a virtual Federalist Society panel, “Courthouse Steps Decision Webinar: Google v. Oracle,” on April 16 (the podcast version is also available via the link)
    • Participated as a panelist during an IP law section discussion on Google v. Oracle hosted virtually by the American Bar Association on April 29
    • Participated in Scalia Law’s Law & Economics Center’s program Introduction to the Economics of Information, Privacy, and Data Security from May 19-23
    • Co-wrote, organized, and filed a May amicus brief, signed by IP scholars, stating that the Federal Circuit should reverse the Eastern District of Texas’ judgment in SAS Institute Inc. v. World Programming Ltd.: “The Court’s holding that Plaintiff’s works are uncopyrightable in their entirety was reached through a flawed examination, in the context of a novel proceeding, that is inconsistent with both the Copyright Act and applicable case law. If sustained, this approach would significantly undermine Congressional intent of promoting and rewarding copyright registration, and set the bar of establishing copyrightability so high that it would prejudice copyright owners not merely in the software sector, but across the full spectrum of creative works.” Students of the Arts & Entertainment Advocacy Clinic helped to research and prepare the brief; Robert W. Clarida (Partner, Reitler Kailas & Rosenblatt, LLC) served as counsel of record, and Steven M. Tepp (President & CEO, Sentinel Worldwide) provided valuable advice.

Jonathan Barnett (CPIP Senior Fellow for Innovation Policy & Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)

Eric Claeys (CPIP Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

Devlin Hartline (Former Director of Communications, CPIP; Former Assistant Professor of Law, George Mason University Antonin Scalia Law)

    • Served as Presiding Officer on March 23, the first day of the virtual 16th Annual Advanced Patent Law Institute, and introduced Acting USPTO Director Drew Hirshfeld, among others. This event was co-sponsored by the University of Texas School of Law and the Antonin Scalia Law School and hosted by the USPTO.
    • Attended the University of Akron School of Law’s virtual 23rd Annual Symposium on Intellectual Property Law and Policy on March 25-26 and moderated the final panel, “The Latest Tools and Challenges for Copyright Enforcement,” on March 26
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Along with other IP scholars, signed a May amicus brief stating that the Federal Circuit should reverse the Eastern District of Texas’ judgment in SAS Institute Inc. v. World Programming Ltd.
    • As of late May 2021, Devlin Hartline has left CPIP and George Mason University Antonin Scalia Law School. Devlin joined CPIP in May 2015 and, as a core member of the team, has contributed substantially to CPIP’s mission, events, programs, and scholarship––as well as team morale––over these past six years. As his teammates, we will miss working with him, and we want to thank him for all his contributions and dedicated work at CPIP. We also wish him the best as he joins the Hudson Institute this July. For now, you can find Devlin on Twitter @devlinhartline.

Christopher Holman (CPIP Senior Fellow for Life Sciences & Senior Scholar; Professor of Law, University of Missouri-Kansas City School of Law)

    • Participated as a Distinguished Senior Commentator in the first meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship, held virtually March 18-19
    • With CPIP Executive Director Prof. Sean O’Connor, submitted written comments on April 5 to NIST on proposed changes to Bayh-Dole Regulations
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections

Joshua Kresh (CPIP Deputy Director)

    • Attended the 28th Annual Fordham IP Conference on April 8-9
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Served as a coordinator for AIPLA’s 2021 Virtual Spring Meeting, which was held from May 10-14 (the event program can be viewed here)

Erika Lietzan (CPIP Senior Scholar; William H Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)

Hina Mehta (CPIP Scholar; Director, Office of Technology Transfer, George Mason University)

    • Gave a webinar on Research Trends at George Mason University for University of Bahrain’s event UoB Research Nights held in mid-May

Sean M. O’Connor (CPIP Executive Director; Founding Director, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

    • Featured CLE speaker at Washington State Patent Lawyers Association’s event, “Bypassing Patents in the Pandemic? The Biden Administration Should Beware Revisionist Accounts of March-In Rights and Sec. 1498” on March 17
    • Spoke at Scalia Law’s virtual Admissions Event on March 18
    • Quoted in a March 29 article by FiercePharma, “Biden faces calls to break COVID-19 vaccine patents. Would that boost global supply?”
    • With CPIP Senior Scholar Prof. Chris Holman, submitted written comments on April 5 to NIST on proposed changes to Bayh-Dole Regulations
    • Featured CLE speaker at Patent and Trademark Office Society (PTOS) event “Bypassing Patents in the Pandemic? The Biden Administration Should Beware Revisionist Accounts of March-In Rights and Sec. 1498” held virtually on April 6
    • Spoke on the virtual panel “Copyright & Music” during the 28th Annual Fordham IP Conference on April 9
    • Spoke on the virtual panel “Intermediary Liability at the Application Layer and Beyond” at the Silicon Flatirons conference, Platform Policy for Networks, Infrastructure, and Applications, on April 14
    • Signed an April 14 “Open Letter by Academics in Favor of Direct EV Sales and Service” supporting direct-to-consumer sales by EV manufacturers such as Tesla (the accompanying letter by public interest organizations can be found here)
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Spoke on the virtual panel “Google v. Oracle: An Initial Appraisal” hosted by Berkeley Center for Law and Technology on April 20
    • Participated in the U.S. Embassy Tokyo’s World IP Day virtual program on IP & SMEs: Taking your ideas to market, speaking on the panel entitled “Patents to Patients: The Role of Intellectual Property in Innovative Healthcare” on the evening of April 26 JST (Japanese-language video of event available here)

Kristen Jakobsen Osenga (CPIP Senior Scholar; Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

    • Moderated a Federalist Society panel, “Courthouse Steps Oral Argument Webinar: United States v. Arthrex Inc.,” on March 1
    • Starting in March 2021, Prof. Osenga has taken over the chair of the Federalist Society Intellectual Property Group Executive Committee from Professor Mark Schultz.
    • Featured in a short video by the Federalist Society on “What is a Trademark? [Legal Terms]” on April 13
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Spoke on the virtual panel on “The Common Purposes of Intellectual Property and Antitrust” with Ashley Baker and Seth Cooper and organized by the Committee for Justice on April 19 (Video of panel available here)
    • Mentioned in an April 28 Patently-O post, “The Public Private Nature of Patents,” by Dennis Crouch, as representing the appellant company Kannuu in Kannuu Pty Ltd. v. Samsung Electronics Co., Ltd.
    • Featured in the Gray Matters podcast on May 4 in the episode “Regulating Vaccines After COVID-19: A Conversation with Sam Kalabi and Kristen Osenga”
    • Featured in a video by University of Richmond School of Law, “The Synopsis: Patents on COVID Vaccines,” on May 12

Eric Priest (CPIP Senior Scholar; Associate Professor, University of Oregon School of Law)

    • Along with other IP scholars, signed a May amicus brief stating that the Federal Circuit should reverse the Eastern District of Texas’ judgment in SAS Institute Inc. v. World Programming Ltd.

Mark Schultz (CPIP 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 Senior Commentator in the first meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship, held virtually March 18-19
    • Was the drafting team co-lead on the 2021 Sedona Conference’s Framework for Analysis on Trade Secret Issues Across International Borders: Extraterritorial Reach, which has been published for public comment as of March
    • Held the University of Akron School of Law’s 23rd Annual Symposium on Intellectual Property Law and Policy virtually on March 25-26
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • On April 28, spoke on the World Intellectual Property Organization (WIPO) webinar “Closing the Gender Gap in Intellectual Property – Mapping and Addressing Barriers”
    • On April 29, spoke on the virtual panel “How Intellectual Property Has Played a Pivotal Role in the Global COVID-19 Response,” which hosted by the Information Technology & Innovation Foundation (ITIF)
    • On May 27, spoke on a webinar on “The Role of Intellectual Property during the pandemic,” held by the Institute for Prospective and Innovation in Health (INNOS) in Colombia. Both the writeup and a link to the webinar recording can be found on this page.
    • Along with other IP scholars, signed a May amicus brief stating that the Federal Circuit should reverse the Eastern District of Texas’ judgment in SAS Institute Inc. v. World Programming Ltd.

Ted Sichelman (CPIP 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)

    • Mentioned in an April 28 Patently-O post, The Public Private Nature of Patents, written by Dennis Crouch, as representing the appellant company Kannuu in Kannuu Pty Ltd. v. Samsung Electronics Co., Ltd.

Scholarship & Other Writings

Alden Abbott, Kevin Madigan, Adam Mossoff, Kristen Osenga, and Zvi Rosen, Holding States Accountable for Copyright Piracy, Regulatory Transparency Project of the Federalist Society (May 13, 2021)

Jonathan M. Barnett, Antitrust Lessons from AT&T’s M&A Fiasco, Truth on the Market (May 24, 2021)

Jonathan M. Barnett, Have tech platforms captured the Supreme Court?, The Hill (Apr. 17, 2021)

Jonathan Barnett, Investors and Regulators Can Both Fall for Platform Bubbles, Truth on the Market (Mar. 2, 2021)

Jonathan Barnett, Why Big Tech Likes Weak IP, Cato Institute (Spring 2021)

CPIP Staff, CPIP First Quarter Progress Report (December 2020-February 2021), CPIP Blog (Mar. 31, 2021)

CPIP Staff, UC Hastings’ Evergreen Drug Patent Search Database: A Look Behind the Statistics Reveals Problems with this Approach to Identifying and Quantifying So-Called “Evergreening,” CPIP Blog (Mar. 4, 2021)

Wade Cribbs, Accenture Report Outlines How 5G Technology Accelerates Economic Growth, CPIP Blog (Mar. 8, 2021)

Wade Cribbs, Scalia Law’s Innovation Law Clinic Partners with BizLaunch for Online Legal Clinic on Business Entities for Startups, CPIP Blog (Mar. 10, 2021)

Tabrez Ebrahim, Professor Tabrez Ebrahim on Clean and Sustainable Technological Innovation, CPIP Blog (Mar. 25, 2021)

Christopher M. Holman, Branded Drug Companies Are Successfully Asserting the Doctrine of Equivalents in Hatch-Waxman Litigation, 40 Biotechnology Law Report 72 (Mar. 2021)

Mark David Janis and Ted M. Sichelman, Patent Law: An Open-Source Casebook (Chapter 5: Anticipation) (Apr. 26, 2021)

Mark David Janis, Ted M. Sichelman, John R. Allison, Thomas F. Cotter, Christopher Anthony Cotropia, Dmitry Karshtedt, Jeffrey A. Lefstin, Jason Rantanen, David Taylor and Shine (Sean) Tu, Patent Law: An Open-Source Casebook (Entire Book), UC Hastings Research Paper Forthcoming (May 6, 2021)

David J. Kappos and Jonathan Barnett, Covid-19 Vaccine Highlights the Need for Balanced Patent Policy, Bloomberg Law (Mar. 16, 2021)

Douglas C. Lippoldt and Mark F. Schultz, An Opportunity for Leadership on Trade Secrets Protection in the Australia-UK Free Trade Agreement, Institute for International Trade (Mar. 25, 2021)

Adam Mossoff and Devlin Hartline, Google v. Oracle: A Copyrightability Decision Masquerading as Fair Use, Washington Legal Foundation (May 7, 2021)

Christopher M. Newman, Isn’t Infringement Ever Apparent?: Toward a Balanced Reading of §512 of the Digital Millennium Copyright Act, George Mason Legal Studies Research Paper No. LS 21-03 (Mar. 5, 2021)

Kristen Osenga, If You’re Sailing Into the Headwinds, You Might Be Going In the Wrong Direction, RealClearMarkets (Apr. 20, 2021)

Kristen Osenga, Online Symposium: Prof. Osenga’s Top 2020 Federal Circuit Patent Decisions, FedCircuitBlog (Mar. 30, 2021)

Yogesh Pai, WTO IP waiver too simplistic: Global vaccine tech-transfer needs other strategies, CPIP Blog (Apr. 29, 2021) (Originally posted in the Express Pharma edition of the Indian Express, Apr. 28, 2021)

Jason Rantanen, Mark David Janis, and Ted M. Sichelman, Patent Law: An Open-Source Casebook (Chapter 7: Infringement) (Apr. 29, 2021)

Ryan Reynolds, Professors Balganesh and Menell on “The Curious Case of the Restatement of Copyright, CPIP Blog (Apr. 8, 2021)

Ryan Reynolds, Professor Justin Hughes on “Restating Copyright Law’s Originality Requirement, CPIP Blog (May 20, 2021)

Mark Schultz, The EU can put trust back into online commerce, The Brussels Times (Mar. 6, 2021)

Austin Shaffer, Artist Roundtable Presented by the Mason Sports & Entertainment Law Association and the Arts & Entertainment Advocacy Clinic, CPIP Blog (May 5, 2021)

Liz Velander, Ninth Circuit Narrows Copyright Owner’s Ability to Receive Multiple Statutory Damages Awards, CPIP Blog (Mar. 17, 2021)

Liz Velander, Recap of the Supreme Court’s Google v. Oracle Opinion,“ CPIP Blog (Apr. 23, 2021)

Categories
Communications Progress Reports

CPIP First Quarter Progress Report (December 2020-February 2021)

Sean O'ConnorGreetings from CPIP Executive Director Sean O’Connor

As we move further into 2021 and begin to see hopeful changes with the coming of COVID-19 vaccinations, I hope this year is looking up for you and yours, and I’m grateful to be able to reach out with a good report from CPIP. The newsletter below is the first of CPIP’s revamped quarterly progress reports, which will be replacing our monthly Roundup going forward, and this edition includes scholarship, events, news announcements, and much more from December 2020 through February 2021. We’re proud of all the work and activities of our directors, scholars, and affiliates from not only the past few months but also throughout the challenging year of 2020, and we look forward to sharing more 2021 updates with you in the coming months!

CPIP Hosted & Co-Hosted Events

On January 28-29, 2021, CPIP hosted an online academic roundtable entitled Hot Topics in the Biopharmaceutical Industries from Scalia Law in Arlington, Virginia. The roundtable included academics, industry leaders, judges, and policymakers to discuss issues at the intersection of intellectual property and biopharmaceutical policy, and it featured presentations by leading scholars of original works in progress. Discussion topics included pharmaceutical evergreening, product hopping, incremental innovation, price controls, reference pricing, and compulsory licensing. We had a great turnout at the roundtable with a lively discussion and we are working on several follow-up projects relating to each session. We are interested in putting together case studies covering follow-on innovations, the commercialization pathway, and so-called “me too” patents. Emily Morris is working on an overview of regulatory exclusivities, while Sean O’Connor and Judge Susan Braden, retired Chief Judge of the Court of Federal Claims and CPIP Jurist in Residence, are working on an article covering the history and current application of 28 U.S.C. §1498.

News & Speaking Engagements

Sandra Aistars (CPIP Director of Copyright Research and Policy; Founding Director, Arts & Entertainment Advocacy Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

Jonathan Barnett (CPIP Senior Fellow for Innovation Policy & Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)

  • Panelist for CIP Forum 2020 conference’s panel “IP & Entrepreneurship – The impact of IP on startup funding and growth,” on December 1, 2020.
  • Discussant for “Intellectual Property and the Constitution” at the Classical Liberal Institute at New York University School of Law on December 3, 2020.
  • Quoted in dot.LA’s article from Feb. 8, 2021: “Who Will Biden Pick to Run the US Patent Office?”

Terrica Carrington (Antonin Scalia Law School Alumna and Arts & Entertainment Advocacy Clinic Adjunct Professor; VP of Legal Policy and Copyright Counsel, Copyright Alliance)

  • On December 1, 2020, Scalia Law published an article on Ms. Carrington entitled Terrica Carrington ‘16: VP of Legal and Policy and Copyright Counsel at the Copyright Alliance. She now serves as VP of Legal Policy and Copyright Counsel at the Copyright Alliance and continues to work with the Clinic as an adjunct professor. She has recently testified before the House Judiciary Committee on the efficacy of the Digital Millennium Copyright Act (DMCA).
  • Carrington played an active role in the Copyright Society of the USA’s 2021 Virtual Midwinter Meeting, which took place over two weeks in February 2021, including moderating a panel discussion entitled The Art of Protest & Activism on Feb. 22, 2021.

Eric Claeys (CPIP Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

  • Featured in a short video by the Federalist Society on “Locke & Montesquieu: The Philosophers Behind the Founders” on January 28, 2021.

Christopher Holman (CPIP Senior Fellow for Life Sciences & Senior Scholar; Professor of Law, University of Missouri-Kansas City School of Law)

Erika Lietzan (CPIP Senior Scholar; William H Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)

  • Appointed Co-Chair of the Annual Conference of the Food and Drug Law Institute (FDLI), a nonprofit organization that focuses on food and drug law. She will also serve as Vice Chair of the Food and Drug Law Committee within the Section of Administrative Law of the American Bar Association.
  • Mentioned in the Mizzou Blog Accolades on Feb 5, 2021: “Erika Lietzan elected as a member of CREDIMI”

Sean M. O’Connor (CPIP Executive Director; Founding Director, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

Kristen Jakobsen Osenga (CPIP Senior Scholar; Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

Eric Priest (CPIP Senior Scholar; Associate Professor, University of Oregon School of Law)

  • Presented article An Entrepreneurship Theory of Copyright (forthcoming, Berkeley Technology Law Journal, Spring 2021) at the University of Oregon Spring Faculty Colloquium, Thursday, Jan. 28, 2021.
  • Discussant on panel “Copyright Protection in China: Turning Music Consumption into Music Revenue” at the Pepperdine Law Review’s virtual Symposium “Hindsight is 2020: A Look at Unresolved Issues in Music Copyright” on Friday, Feb. 26, 2021.

Mark Schultz (CPIP 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)

Ted Sichelman (CPIP 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)

Scholarship & Other Writings

Shyamkrishna Balganesh & Peter S. Menell, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, 45 Colum. J.L. & Arts ___ (forthcoming 2021)

Jonathan Barnett, Antitrust by Fiat, Truth on the Market (Feb. 23, 2021)

Jonathan M. Barnett, How and Why Almost Every Competition Regulator Was Wrong About Standard-Essential Patents, CPI Antitrust Chron. (Dec. 2020)

Jonathan Barnett, How FTC v. Qualcomm Led to the Nvidia-Arm Acquisition, Truth on the Market (Feb. 17, 2021)

Jonathan Barnett, How Patents Enable Mavericks and Challenge Incumbents, IPWatchdog (Jan. 24, 2021)

Jonathan Barnett, Innovators, Firms, and Markets: The Organizational Logic of Intellectual Property (Oxford Univ. Press 2021)

Eric R. Claeys, Claim Communication in Intellectual Property: A Comment on Right on Time, 100 B.U. L. Rev. Online 4 (2020).

CPIP Staff, Professor Joanna Shepherd Explains Pharmaceutical Product Hopping in New CPIP Policy Brief, CPIP Blog (Dec. 9, 2020)

Wade Cribbs, Hudson Institute Panel Focuses on Patent Litigation in China, CPIP Blog (Feb. 26, 2021)

Loletta Darden, Overlapping and Sequential Copyright, Patent, and Trademark Protections: A Case for Overruling the Per Se Bar, 44 Colum. J.L. & Arts 157 (2021)

Tabrez Y. Ebrahim, National Cybersecurity Innovation , 123 W. Va. L. Rev. 483 (2020)

Devlin Hartline, Ninth Circuit Clarifies Transformative Fair Use in Dr. Seuss v. ComicMix, CPIP Blog (Dec. 22, 2020)

Devlin Hartline, Ninth Circuit Confirms: Fair Use Is an Affirmative Defense to Copyright Infringement, CPIP Blog (Dec. 28, 2020)

Christopher M. Holman, GlaxoSmithKline v. Teva: Holding a Generic Liable for an Artificial Act of Inducement, 39 Biotech. L. Rep. 425 (2020)

Christopher M. Holman, Government Involvement in Pharmaceutical Development Can Come Back to Haunt a Drug Company, 40 Biotech. L. Rep. 4 (2021)

Matthew Jordan, Neil Davey, Maheshkumar P. Joshi, & Raj Davé, Forty Years Since Diamond v. Chakrabarty: Legal Underpinnings and its Impact on the Biotechnology Industry and Society (Ctr. for the Prot. of Intell. Prop. Jan. 2021)

Colin Kreutzer, IP Scholars Question the Legality and Wisdom of Joint AG Proposal to Seize Remdesivir Patents, CPIP Blog (Dec. 16, 2020)

Colin Kreutzer, USPTO-DOJ Workshop on Promoting Innovation in the Life Science Sector: Day One Recap, CPIP Blog (Jan. 12, 2021)

Colin Kreutzer, USPTO-DOJ Workshop on Promoting Innovation in the Life Science Sector: Day Two Recap, CPIP Blog (Jan. 13, 2021)

Christa J. Laser, Certiorari in Patent Cases, 48 AIPLA Q.J. 569 (2020)

Yumi Oda, Professor Daryl Lim Explores the Doctrine of Equivalents and Equitable Triggers, CPIP Blog (Dec. 17, 2020)

Sean M. O’Connor, The Damaging Myth of Patent Exhaustion, 28 Tex. Intell. Prop. L.J. 443 (2020)

Kristen Osenga, Striking the Right Balance: Following the DOJ’s Lead for Innovation in Standardized Technology, ___ Akron L. Rev. ___ (forthcoming 2021)

Sean A. Pager & Eric Priest, Redeeming Globalization Through Unfair Competition Law, 41 Cardozo L. Rev. 2435 (2020)

Mark Schultz, How Can Asian Governments Foster Local Entertainment in the Streaming Era?, The Diplomat (Dec. 11, 2020)

Mark Schultz, IP System Has Brought Light To The Tunnel — Mark Schultz, CodeBlue (Feb. 2, 2021).

Austin Shaffer, Professors Erika Lietzan and Kristina Acri on “Distorted Drug Patents”, CPIP Blog (Feb. 12, 2021)

Joanna M. Shepherd, The Legal and Industry Framework of Pharmaceutical Product Hopping and Considerations for Future Legislation (Ctr. for the Prot. of Intell. Prop. Dec. 2020)

Conor Sherman, Jonathan Barnett on Competition Regulators and Standard-Essential Patents, CPIP Blog (Feb. 17, 2021)

Ted Sichelman, The USPTO Patent Litigation Dataset: Open Source, Extensive Docket and Patent Number Data, Patently-O (Dec. 16, 2020)

Ted M. Sichelman, Wesley Hohfeld’s Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (Annotated and Edited), in Wesley Hohfeld a Century Later: Edited Work, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge Univ. Press, forthcoming 2021)

Liz Velander, Professor Shyam Balganesh on Understanding Privative Copyright Claims, CPIP Blog (Dec. 8, 2020)

Liz Velander, Senate IP Subcommittee Considers the Role of Private Agreements and Existing Technology in Curbing Online Piracy, CPIP Blog (Jan. 28, 2021)

Terence Yen, Professor David Taylor on Patent Eligibility and Investment, CPIP Blog (Feb. 4, 2021)