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NO FAKES Act: Unpacking the New Bipartisan Bill on Digital Replicas

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.

Guest post by Professor Justin Hughes

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.

 

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Artificial Intelligence Copyright Uncategorized

Authors are Humans and Creativity is a Function of Humanness: What the Mannion Court Can Teach Us About Generative AI’s Relationship to Authorship

By Molly Stech*

* 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.

silver copyright symbolDespite 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.

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Uncategorized

Using Economic Models to Evaluate the Efficacy of U.S. Patent Examination

By William Matcham

For the Center for Intellectual Property x Innovation Policy blog, in fulfillment of obligations for the Thomas Edison Innovation Law and Policy Fellowship

Folder tab reading "Patents"

Highlights:

    • Policymakers frequently debate the effectiveness of the U.S. patent system – critics claim that problems arise from the ineffective patent application and examination process.
    • We fill a large gap in the economics literature by building an economic model of the patent prosecution process.
    • The model implies that patent screening is relatively effective, in large part because the examiners are well motivated. However, restrictions on negotiations could improve screening outcomes.
    • We view our work as the first part of a broader research agenda assessing the effectiveness of resource allocation in public agencies that incentivize and fund innovation.

The Importance of Public Institutions in Fostering Innovation

In a forthcoming research article, Mark Schankerman and I estimate an economic model to evaluate the effectiveness of patent screening at the U.S. Patent and Trademark Office (USPTO). Part of a broader research program, the project shows how economic models can be used to study and improve the efficiency of resource allocation by innovation-related public agencies. I worked towards writing this paper in conjunction with the George Mason University Scalia School of Law’s 2022-2023 Thomas Edison Innovation Law and Policy Fellowship. I am very grateful for the thoughtful comments I received from Distinguished Commentators and scholars involved with the Fellowship.

Public agencies play a central role in fostering innovation through two primary channels: direct and indirect funding of public and private research, and allocating intellectual property rights, specifically patents. In the United States, for example, federal investment in Research and Development (R&D) activities amounted to $120.9B in 2015 alone. Moreover, nearly 400,000 patents were issued by the USPTO in the same year.

Despite their evident importance, little is known about whether innovation-supporting public institutions allocate resources efficiently and how organizational changes affect agency performance. In our first project on this topic, we study the U.S. patent system, focusing on the quality of screening—the allocation of property rights for innovation— by the Patent Office.

The Growing Policy Debate

The effectiveness of patent screening and its implications for the quality of patents is a hotly debated policy issue. There is growing concern among academic scholars and policymakers that patent rights are becoming an impediment rather than an incentive to innovation. These concerns have been prominently voiced in public debates, in recent U.S. Supreme Court decisions, and culminating in the Leahy-Smith America Invents Act of 2011, the most significant statutory change to the patent system in half a century.

Critics of the patent system claim that the problems arise mainly from ineffective USPTO screening, where patents are granted to inventions that do not represent a substantial inventive step—especially in emerging technology areas such as business methods and software. The issue is essential because granting “excessive” patent rights imposes social costs: higher prices and restricted quantities of patented goods, greater enforcement (litigation) costs, increased transaction costs of R&D, and the potential to undermine the process of cumulative innovation.

What We Do

We develop an economic model of the patent screening process, which incorporates incentives and intrinsic motivation of examiners and the actual structure of multi-round negotiation in the current system. By intrinsic motivation, we mean examiners’ desire to ensure their decisions align with the USPTO’s mission, which is to award inventors property rights over their invention, consistent with statutory and judicial prescriptions. We estimate the model using new negotiation-round-level data on examiner decisions and text data from 20 million patent claims. We conduct counterfactual, “what-if” analysis of how reforms to incentives, fees, and the structure of negotiations affect the quality and speed of patent screening.

Advantages and Uniqueness of Our Analytical Framework

The patent prosecution process is an advantageous context to study the effects of incentives and motivation on screening for two primary reasons. First, the multi-round negotiation between the applicant and examiner fits naturally into a specific economic modeling tool called a “dynamic game,” which forms the basis of our model. The model is “dynamic” in the sense that we allow multiple negotiations over time between the examiner and the applicant, and a “game” in the sense that both examiner and applicant make decisions that account for how the opposing party will respond. Such a model is necessary in this context because existing empirical (so-called reduced form) analyses are not capable of analyzing how examiners and applicants would both respond to changes in the patent screening regime. For this one needs a full model of the process, capable of doing such counterfactual analyses.

The second advantage of the patent context is the quality of data. The USPTO collects detailed data on all applications, not just granted patents. For this paper, we constructed a dataset covering around 55 million patent application decisions across 20 million patent claims between 2010-2015. For applications, we observe each examiner’s decision on each patent claim over all rounds of the negotiation. Advanced natural language processing (NLP) techniques assist us in measuring the “distance” between different patents, an important metric for understanding strategic behaviors by both applicants and examiners. Together with the characteristics of examiners and applicants, we use these data to estimate our model of the patent application process.

Key Findings

Our estimates imply several key empirical findings; we focus here on two of the core insights:

    1. Intrinsic motivation plays a significant role in contributing to the accuracy of patent screening. Junior examiners are more motivated than seniors on average, but there is considerable variation within both groups. Further, using the estimated parameters, counterfactual analysis shows that removing intrinsic motivation increases the frequency of examiners granting invalid patents fourfold. This finding highlights the importance of designing human resource policies that effectively select examiners with high intrinsic motivation and ensure they sustain this motivation throughout their careers.
    2. Innovators pad their patent applications, but the examination process screens much of this out. By this, we mean that applicants initially claim greater property rights than are warranted by the true “inventive step” of their innovation. Moreover, there is substantial variation in the degree of padding across patent applications. This result highlights the importance of effective screening. We estimate the average level of padding at around 8-10%. This exaggerated scope of the patent applications, in turn, implies that approximately 80% of claims start below the distance threshold for patentability and thus should be rejected. The multi-round screening process substantially narrows the scope of patent rights sought and, in so doing, reduces that number to about 7% among granted claims (though nearly one in five granted patents contains at least one patent claim that does not meet the threshold).

Reforms to the Patent Screening Process

Our counterfactual experiments reveal the effects of a range of specific policy changes the USPTO could consider. To take one example, limiting the negotiation rounds would substantially reduce the granting of invalid patents and, naturally, improve the speed of prosecution. However, such a limit would force abandonments by applicants who only need to make moderate adjustments to meet the required standards. This in turn could dissuade inventors from developing their valuable ideas in the first place. On net, we find that the benefits of reducing negotiation rounds outweigh the costs, suggesting that rounds restrictions are worthy of consideration.

Concluding Remarks

Our study serves as an important first piece of research highlighting the crucial role of intrinsic motivation in public agencies, particularly in the context of innovation-promoting institutions. It exposes the complex trade-off between the speed and quality of application processing and applicants’ incentives to innovate. We believe this work lays a strong foundation for further academic inquiry into the efficiency of resource allocation in innovation-supporting public agencies.

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C-IP2 2022 Fall Progress Report (June-August 2022)

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

As our fall season of programming is underway, we are pleased to report on summer (June-August) programming and scholarship at C-IP2. Here are some highlights:

    • Fifth annual exclusive WIPO-U.S. Summer School on Intellectual Property virtually hosted about fifty students from around the world, taught by renowned experts from the academy and industry
    • Fourteen new Senior Scholars and Scholars (several of whom are former CPIP/C-IP2 Edison Fellows)
    • Professor Alexandra Roberts of Northeastern University joins in our new position of Senior Fellow for Trademarks
    • Three amicus briefs in major IP cases drafted and filed by C-IP2 staff and affiliates

We also organized the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship and C-IP2’s 2022 Annual Fall Conference during this period—both of which were successfully held in person and will be included in next quarter’s Progress Report. Finally, please note that our 2023-2024 Thomas Edison Innovation Law & Policy Fellowship Call for Applications was posted last week; details can be viewed here.

C-IP2 Hosted & Co-Hosted Events

Academic Program
From June 6-17, C-IP2 hosted the prestigious WIPO-U.S. Summer School on Intellectual Property for the fifth year. The virtual Summer School included 50 students representing 19 countries including Azerbaijan, Brazil, Canada, China, Columbia, Ethiopia, Hungary, India, Indonesia, Japan, Nigeria, Peru, Philippines, Republic of Korea, Romania, South Africa, the United States of America, Ukraine, and Vietnam. Among the instructors this year were C-IP2 directors Sean O’Connor and Joshua Kresh; C-IP2 Senior Fellows Sandra Aistars, Jonathan Barnett, and Emily Michiko Morris; and several C-IP2 Affiliates: David Grossman, Steve Jamar, Lateef Mtima, Kristen Osenga, Eric Priest, and Mark Schultz. The Summer School was also taught by retired judges: the Honorable Judge Paul Michel (Ret.), U.S. Court of Appeals for the Federal Circuit, and the Chief Judge Susan Braden (Ret.), and by speakers from such government organizations as the U.S. Patent and Trademark Office and the U.S. Copyright Office.

News and Speaking Engagements

The Institute for Digital Innovation (IDIA)—which has partnered with the Innovation Law Clinic, founded by C-IP2 Faculty Director Seán O’Connor—was mentioned in a June 14 Free Lance Star article by Michael Martz (Richmond Times-Dispatch).

This summer, we were honored and delighted to welcome to our team of C-IP2 affiliates a number of academics we admire and with whom we look forward to working!

    • Senior Fellow for Trademarks: Professor Alexandra Jane Roberts
    • Senior Scholars: Professor Daniel Cahoy, Professor Justin (Gus) Hurwitz, Professor Steven Jamar, Professor Adam MacLeod, Professor Lateef Mtima, Professor Michael Risch, Professor Keith Robinson, Professor Brenda Simon, and Professor Saurabh Vishnubhakat
    • Scholars: Professor Lolita Darden, Dr. Charles Delmotte, Professor Gerardo Con Díaz, Professor Laura Ford, Professor Zvi Rosen

C-IP2 was mentioned on Newswire’s article “National Vaccine Law Conference to Discuss & Debate Legal Aspects of Vaccines & Immunization in Virginia September 15-16″ as a co-host and partner of the conference.

C-IP2 Scholar Lolita Darden & Senior Scholar Lateef Mtima served as Additional Counsel for the following amicus brief: The Andy Warhol Foundation for the Visual Arts, Inc., v. Lynn Goldsmith and Lynn Goldsmith, Ltd., Brief of Amici Curiae Institute for Intellectual Property and Social Justice and Intellectual-Property Professors in Support of Respondent (U.S. August 15, 2022). The brief was also signed by Faculty Director Sean O’Connor, Senior Scholar Steven Jamar, and Edison Distinguished Commentator Justin Hughes.

C-IP2 Managing Director Joshua Kresh and Senior Fellow for Life Sciences and Scholar Emily Michiko Morris organized and signed following brief: Novartis Pharmaceuticals Corporation v. Accord Healthcare Inc., etc., Brief of Amici Curiae Intellectual Property Law Professors in Support of Novartis Pharmaceuticals Corporation’s Petition for Panel and En Banc Rehearing (U.S. August 4, 2022). The brief was also signed by Senior Scholars Kristen Osenga, Mark Schultz, and Ted Sichelman.

C-IP2 Senior Fellow for Copyright Research and Policy and Senior Scholar Sandra Aistars organized and signed the following brief: Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive (U.S. August 5, 2022). The brief was also signed by Faculty Director Sean O’Connor; Managing Director Joshua Kresh; Senior Fellow for Innovation Policy & Senior Scholar Jonathan Barnett; Senior Scholars Jon Garon, Eric Priest, and Mark Schultz; and Scholars Christopher Newman and Zvi Rosen.

C-IP2 Senior Fellow for Life Sciences Emily Michiko Morris has provided an analysis of Senator Tillis’s Patent Eligibility Restoration Act of 2022 bill, an important amendment to § 101 that would create valuable certainty in an area that has been murky for more than a decade.

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)

    • On June 13, taught “Fundamentals of Copyright” and moderated the panel “Copyright in the Creative Industries” during the virtual WIPO-U.S. Summer School on Intellectual Property, hosted by C-IP2
    • On June 14, spoke with Suzanne Wilson, General Counsel and Associate Register of Copyrights at the U.S. Copyright Office, in a Fireside Chat as part of the WIPO-U.S. Summer School on IP
    • On June 21, participated in a virtual Copyright Claims Board Roundtable event
    • Organized and signed Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive (U.S. August 5, 2022)

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

    • On June 6, taught “Overview and Economics of Intellectual Property” at the virtual WIPO-U.S. Summer School on Intellectual Property, hosted by C-IP2
    • On June 15, spoke on the virtual panel “The U.S. Innovation System in a Changing World,” which was co-hosted by C-IP2 and the Smithsonian’s Lemelson Center for the Study of Invention and Innovation
    • On June 22, spoke on “How Patents Drive Innovation and Growth: Insights from the Route 128 Tech Ecosystem” at a virtual Legislative Committee event hosted by the Boston Patent Law Association
    • On June 27, spoke on “Regulatory Rents: An Agency-Cost Analysis of the FTC Rulemaking Initiative” at a symposium on the Rulemaking Authority of the Federal Trade Commission in Washington, D.C.
    • Signed Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive (U.S. August 5, 2022)
    • On August 15, appeared on Information Technology and Innovation Foundation’s podcast Innovation Files in the episode “What Happens to the Economy When Patent Protections Are Weakened, With Jonathan Barnett”
    • On August 18, was mentioned in a CBR (Comic Book Resources) article “Warner Bros. Discovery’s Batgirl Cancellation Raises Antitrust Concerns, Warns Law Professor”

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

    • On June 3, attended USPTO Public Patent Advisory Committee (PPAC) Meeting with Undersecretary of Commerce for Intellectual Property and Director USPTO
    • On June 7, co-taught “Enforcing Rights: U.S. Patent Litigation” with Joshua Kresh at the virtual WIPO-U.S. Summer School on Intellectual Property, hosted by C-IP2
    • On June 9, attended United Inventors Association Board of Director Meeting
    • On June 13, attended USPTO PPAC Meeting with Chief Policy Officer and Director for International Affairs and Director of Government Affairs and Oversight and attended PPAC Executive Meeting on Patent Quality
    • On June 14, attended Public Session of USPTO PPAC and Meeting with USPTO’s Chief Information Officer
    • On June 15-18, attended Federal Circuit Bar Association Meeting in Sea Island, Georgia
    • On June 29, attended inaugural AI & Emerging Technology Partnership Meeting
    • On July 28, met with the USPTO CIO regarding the agenda for the August 9 public USPTO PPAC Meeting
    • On July 26, taught Civil Trial Litigation and Management (Including Patent Infringement Cases) to Community Court of Justice (ECOWAS), International Law Institute, Georgetown
    • On July 31, hosted a dinner party for the Ambassador to the United States from Niger to discuss IP law and enforcement in Niger
    • On August 1, attended a PPAC Executive Meeting
    • On August 4, ABA IP Section Council Dinner, Chicago
    • On August 5, PPAC Finance Subcommittee Meeting
    • On August 8, attended a PPAC Executive Meeting
    • On August 9, attended a PPAC Public Meeting (Presenter IT/AI Subcommittee)

Daniel R. Cahoy (C-IP2 Senior Scholar; Robert G. and Caroline Schwartz Professor, The Pennsylvania State University’s Smeal College of Business; Research Director, Center for the Business of Sustainability)

    • In August, joined C-IP2 as a Senior Scholar

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

    • On June 16, participated in a discussion hosted by the Recording Academy/GRAMMY Advocacy, entitled “What You Need To Know About The Copyright Claims Board”
    • On June 30, spoke on a panel hosted by the Hudson Institute, entitled “What the Copyright Claims Board Means for Creators” (a recording of the panel is available here)
    • On July 12, spoke on a panel hosted by the Authors Guild on the “Copyright Claims Board: What Authors & Agents Should Know” (recording available here)

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

    • On June 1-3, served on the faculty of the 15th Annual ABA Arbitration Training Institute at Loyola University Chicago School of Law
    • In June, was invited by the College of Commercial Arbitratorsto join the College as a Fellow: “Established in 2001, the CCA is the world’s most prestigious ADR professional organization, defining and promoting the highest standards of arbitrator ethics, standards of conduct, and best practices. The CCA is an invitation-only organization that provides a meaningful contribution to the profession, the public, the legal sector, and to the businesses that implement commercial arbitration as a means of dispute resolution. The Fellows of the CCA are the elite within the profession. They have the professional training, judgment, and years of experience to undertake the most complex and difficult commercial arbitration assignments.”
    • Between June 1-3, 2022, served on the faculty of the ABA’s Arbitration Practice Development Program & 15th Annual Arbitration Training Institute, which was held at Loyola University Chicago School of Law. Specifically, Mr. Cheng spoke on programs relating to developing an arbitration practice, initiating arbitration proceedings, conducting preliminary hearings, and arbitration award-writing and post-award issues. Agenda at this link.
    • On June 23, 2022, spoke at the meeting of the Regional CCA Fellows Meeting on the topic of “Managing Virtual Hearing Exhibits”
    • On June 29, 2022, was a speaker on a panel hosted by Consolidated Edison entitled “Negotiating a Settlement in Mediation”
    • In July, Mr. Cheng’s latest column in his Resolution Alleyseries was published in the New York State Bar Association’s Entertainment, Arts & Sports Law Journal entitled, “‘The Slap’ and Emotions in Conflicts and Disputes.”
    • On July 13, 2022, gave a presentation to the ABA Dispute Resolution Section’s Mediation Committee entitled “A Refreshed Way to Deliver the Mediator’s Proposal”
    • On July 13, 2022, also participated in two panel programs that were a part of the New York State Bar Association’s Comprehensive Commercial Arbitration Training For Arbitrators And Counsel. The first panel addressed “Arbitration Ethics,” and the second panel addressed “Perspectives on Practice Development in the Arbitration World.” Program details at this link.
    • On July 19, 2022, was a co-speaker on a program presented to the New York State Office of the Attorney General entitled “Using Alternative Dispute Resolution to Address Intellectual Property Rights in the Employment Context”
    • On July 27, 2022, was a panelist on a program sponsored by the ABA Dispute Resolution Section’s ADR Practice Management, Business and Skills Development Committee entitled “Captivating Conversations that Connect and Convert: Best Practices for Marketing Your ADR Practice Online.” More details at this link.
    • On August 2, 2022, gave a presentation to the Asian Pacific American Lawyers Association of New Jersey on “The Roles and Responsibilities of a Nonprofit Board and its Members”
    • On August 26, 2022, gave an orientation to arbitration presentation to the New York Law School Dispute Resolution Team, and will be giving a longer training session to the team on September 30th

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

    • On August 29, was mentioned on the American Law Institute’s website as being a speaker at the upcoming 19th Annual Brigham-Kanner Property Rights Conference on September 29-30

Lolita Darden (C-IP2 Scholar; Visiting Associate Clinical Professor; Director of Intellectual Property and Technology Clinic, The George Washington University Law School)

Dr. Charles Delmotte (C-IP2 Scholar; Assistant Professor, Michigan State University College of Law; Affiliate Fellow, New York University School of Law Classical Liberal Institute)

    • In July, joined C-IP2 as a Scholar
    • In August, was interviewed for the Detroit Legal News article “NYU tax scholar joins faculty at Michigan State law school”

Gerardo Con Diaz (C-IP2 Scholar; Associate Professor, Science and Technology Studies, UC Davis College of Letters and Science

    • In July, joined C-IP2 as a Scholar

Tabrez Ebrahim (C-IP2 Scholar; Associate Professor of Law, Lewis & Clark Law School)

    • Participated as a discussant at the University of Houston Law Center’s Institute for Intellectual Property & Information Law’s National Conference
    • Co-organized a June 17 Symposium on Data in Cyber-Physical Systems, for the Center for Legal & Court Technology at William & Mary
    • On July 22, participated in a workshop for Digital Platforms as Enabling Access & Delivery of Legal Services during the virtual First Annual Olivas Writing Institute
    • On July 31, presented on Quantum Standards Development Organizations and their Patent Policies during a panel on “Intellectual Property and Web3” as part of the 2022 Southeastern Association of Law Schools (SEALS) Conference in Miramar Beach, Florida
    • In August, spoke on “Quantum Standards Development Organizations and their Patent Policies” at the 19th Annual IP Scholars Conference (IPSC), Stanford Law School, and at the Junior IP Scholars Association (JIPSA), Univ. of California, Berkeley School of Law

Laura Ford (C-IP2 Scholar; Associate Professor of Law, Faulkner University’s Thomas Goode Jones School of Law)

    • In July, joined C-IP2 as a Scholar

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)

    • Participated in the University of New Hampshire Franklin Pierce Law School, Intellectual Property Summer Institute, creating and teaching a new course entitled “Regulatory and Contractual Aspects of Web3 and the Metaverse”
    • In July, offered an all-day intellectual property training program for Blue Ridge University entitled Understanding Intellectual Property for the Emerging Business
    • In July and August, presented and moderated a series of panels at the Southeastern Association of Law Schools, including the following:
      • Intellectual Property, NFTs, and Collective Creation
      • Rethinking the Scholarship Submission Process and the Role for Law School Scholarship
      • Workshop on Advancement: Effective Development and Management of Advisory Boards
      • Workshop on Online Education: Online & Hybrid Learning Pedagogy Best Practices and Standards Development
      • Workshop on Online Education: The Changing Online Landscape
      • Constitutional Law Workshop: Is the U.S. Democratic System in Trouble?
      • Workshop on Online Education: Lessons from the Research on Online Legal Education
      • Is Section 230 Unconstitutional? Should it be modified?
    • Signed Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive (U.S. August 5, 2022)

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

    • On June 9, taught a Simulation Exercise on “Transfer of Technology and Licensing” at the virtual WIPO-U.S. Summer School on Intellectual Property, hosted by C-IP2

Dr. Bowman Heiden (C-IP2 Scholar; Co-Director, Center for Intellectual Property (CIP), University of Gothenburg, Visiting Professor, University of California, Berkeley)

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

    • On July 29, was mentioned in a Patently-O blog post, “The Sound of Silence and the Inherency Doctrine for Written Description”
    • On August 9, was mentioned in the Patently-O post, “Novartis En Banc and Amicus Support”
    • On August 25, was mentioned in the Patently-O post, “Decisions by the Court as an Institution; or by the Judge as a Human?”

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

    • Congratulations to Camilla Hrdy, who—as of August 2022—is now Professor of Intellectual Property Law at the University of Akron School of Law!

Justin (Gus) Hurwitz (C-IP2 Senior Scholar; Professor of Law, The Menard Director of the Nebraska Governance and Technology Center and the Co-Director of the Space, Cyber, and Telecommunications Law Program, University of Nebraska-Lincoln College of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022

Steven D. Jamar (C-IP2 Senior Scholar; Associate Director, Institute for Intellectual Property and Social Justice (IIPSJ); Professor Emeritus, Howard University School of Law)

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

    • In June 23, was mentioned in a Harvard Law School Forum on Corporate Governance post “Proposal on Climate-Related Disclosures for Investors”
    • On July 19, was mentioned in the Blog of the European Journal of International Law’s post “ISDS reform and air guitar: A response to Grant and Kieff”
    • On July 31, was mentioned in the Blog of the European Journal of International Law’s post “Two Weeks in Review, 18 July – 31 July”

Joshua Kresh (C-IP2 Managing Director)

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

    • On June 10, gave a presentation entitled ‘Repositioning Generic Drugs: Empirical Realities’ at the Munich Summer Institute (Bavarian Academy of Sciences and Humanities, Munich, Germany)
    • On June 20, gave a presentation entitled ‘Our repurposing story’ at the CeBIL Retreat at the University of Copenhagen in Denmark
    • With colleagues, was cited and quoted in the USPTO’s Report to Congress entitled “Patent eligible subject matter: Public views on the current jurisprudence in the United States”

Erika Lietzan (C-IP2 Senior Scholar; William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)

    • On June 15, spoke on the panel “Top Cases in Food and Drug Law” at the Food and Drug Law Institute’s 2022 Annual Conference in Washington, D.C.
    • In August 2022, released the fifth edition of the book Food and Drug Law with co-authors Peter Barton Hutt, Richard A. Merrill, Lewis A. Grossman, Nathan Cortez, and Patricia J. Zettler.

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 Dickinson Law)

    • Congratulations to Professor Lim, who has accepted a new position at The Pennsylvania State University’s Dickinson Law School!
    • Spoke at the Artificial Intelligence and Intellectual Property Rights Conference, which was hosted in Switzerland from June 9-11 by the Swiss Federal Institute of Intellectual Property (IPI) and the University of Zurich Center for Intellectual Property and Competition Law (CIPCO)
    • Spoke on “IP and Tech: Is Past Prologue?” and served as a panelist for “Future Policy at the United States Patent and Trademark Office – Transformation or Status Quo” at the 37th marcus evans IP Law Summit, which was held from June 26-28 in Chicago, Illinois
    • Spoke on “Semiconductor M&A and IP Protection under the Epidemic” at the 2022 Jiwei Semiconductor Summit, which was held from July 15-16 in Xiamen, China 

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)

    • Joined C-IP2 as a Senior Scholar in July 2022

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)

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))

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

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

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

Eric Priest (C-IP2 Senior Scholar; Associate Professor, University of Oregon School of Law)

Michael Risch (C-IP2 Senior Scholar; Vice Dean and Professor of Law, Villanova University Charles Widger School of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022
    • On August 11, spoke on “Growth of Trade Secrets in Patent Cases” at the IP Scholars Conference at Stanford Law School

Alexandra Jane Roberts (C-IP2 Senior Fellow for Trademarks; Professor of Law and Media, School of Law and Department of Music, College of Arts, Media and Design (CAMD), Northeastern University)

    • Joined C-IP2 as Senior Fellow for Trademarks in August 2022
    • Was quoted in the August 3 Protocol article “What’s in a name? If the name is Meta, a lawsuit.” by Issie Lapowsky
    • Was quoted in the August 24 Fast Company article “Is that shirt a Gucci . . . or a Cuggl?” by Elizabeth Segran
    • Was quoted in the August 30 Bloomberg Law article “Trump’s ‘Truth Social’ Trademark Loss More Detour Than Roadblock” by Riddhi Setty

W. Keith Robinson (C-IP2 Senior Scholar; Professor of Law, Wake Forest University School of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022
    • Organized and moderated a July 31 panel on IP and Web 3 at the 2022 SEALS conference
    • On August 5, was quoted in the Raleigh News & Observer paper on a patent infringement case

Zvi S. Rosen (C-IP2 Scholar; Assistant Professor of Law, Southern Illinois University School of Law)

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)

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

    • In July, presented an article on immigration at the Global Meeting on Law and Society in Lisbon, Portugal
    • The week of August 8, presented own Edison Fellowship article at the Junior IP Scholars Conference at Berkeley Law, and presented an article on an empirical examination of patent law and venue at the 2022 Intellectual Property Scholars Conference at Stanford Law
    • Is participating on the consultative group to the Administrative Conference of the United States (ACUS) for the project they are undertaking on the U.S. Patent Small Claims Court

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)

Brenda Simon (C-IP2 Senior Scholar; Professor of Law, California Western School of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022
    • In August, was appointed the “ProFlowers Professor of Internet Studies” at California Western School of Law

Saurabh Vishnubhakat (C-IP2 Senior Scholar; Professor of Law and Director, Intellectual Property and Innovation Law Program, Yeshiva University Benjamin N. Cardozo School of Law)

    • Joined C-IP2 as a Senior Scholar in July 2022
Scholarship & Other Writings

Jonathan M. Barnett, Antitrust populism would shift US from free market to managed economy, The Hill (June 15, 2022)

Jonathan Barnett, Antitrust Populism Would Shift Us From Market to Managed, Real Clear Markets (June 16, 2022)

Jonathan Barnett, Market Drops Show Tech Antitrust Reform Isn’t Needed, Law360 (August 5, 2022)

Jonathan M. Barnett, How patents facilitate market entry and promote competition, IAM (July 6, 2022)

Jonathan Barnett, Intellectual Property and Transactional Choice: Rethinking the IP/Antitrust Dichotomy, CPI Antitrust Chronicle (July 2022)

Jonathan Barnett, “Regulatory Rents: An Agency-Cost Analysis of the FTC Rulemaking Initiative,” in Rulemaking Authority of the Federal Trade Commission (ed. Daniel Crane, Concurrences 2022)

Jonathan Barnett and David J. Teece, Is the West Giving Away the Game?, Network Law Review (July 21, 2022)

Gustav Brismark and Bowman Heiden, Licensing 2.0: How to Incentivise around the Prisoner’s Dilemma in SEP Licensing (July 22, 2022) [published by IAM on July 20, 2022 (link)]

Charles Delmotte and Daniel Nientiedt (2022). “Classical Liberalism: Market-Supporting Institutions and Public Goods Funded by Limited Taxation.” In Political Philosophy and Taxation, R.F. van Brederode (ed). Springer, Singapore.

Bowman Heiden and Caroline Pamp, Textiles For The Extreme (EPO tech transfer case study published in Les Nouvelles, June 2022)

Bowman Heiden and Thomas Bereuter, Licensing-Based Business Models (article in Les Nouvelles, June 2022)

Bowman Heiden and Lew Zaretzki, Why it’s time to create transparency around 5G SEPs, IAM (29 June 2022)

Chris Holman, Federal Circuit Flips “Negative Claim Limitation” Decision after Change in Panel Composition, Patently-O (June 23, 2022)

Kristen Osenga, Our National Security Depends on SEP Policy, LeadershIP (June 14, 2022)

Yogesh Pai and Prashant Reddy T, The TRIPs waiver and India: A misadventure and a compromise in Geneva by the government, Scroll.in (June 29, 2022)

Philip Stevens and Mark Schultz, Building a Predictable, Stable Patent System in Brazil, Geneva Network (June 20, 2022)

Prashant Reddy T. and Yogesh Pai, Crime and copyright infringement, The Hindu (June 8, 2022)

Thomas D. Grant and F. Scott Kieff, Chinese courts are deciding key patent cases — the US and its allies should be wary, The Hill (July 28, 2022)

Chris Holman, CareDx v. Natera: Some Further Thoughts on the Patent Eligibility of Molecular Diagnostics, Patently-O (July 20, 2022)

Peter Barton Hutt, Richard A. Merrill, Lewis A. Grossman, Nathan Cortez, Erika Fisher Lietzan, and Patricia J. Zettler, Food and Drug Law, 5th ed. (Foundation Press 2022)

F. Scott Kieff and Thomas Grant, UK Rulings Give Chinese Courts Wide Powers in IP Disputes, Law360 (August 12, 2022)

Adam MacLeod, Vested Patents and Equal Justice (July 21, 2022). Catholic University Law Review, Forthcoming

Irina Manta, Announcing “Strangers on the Internet” Podcast, The Volokh Conspiracy (August 3, 2022)

Irina Manta and Cassandra Burke Robertson, Constitutional Citizenship in the U.S. Territories, LawFare (July 27, 2022)

Emily Michiko Morris, A Response to ‘Another Legislative Attempt to Revive Gene Patenting,’ Harvard Law Petrie-Flom Center (August 26, 2022)

Kristen Osenga, Friendly Fire: How the Biden Administration’s Innovation Policy Is Undermining U.S. National Security (July 13, 2022). CPI Antitrust Chronicle (July 2022) (SSRN | CPI)

Jack Ring, FTC Chair and Commissioners Weigh in on SEP Litigation at the ITC, C-IP2 Blog (August 24, 2022)

Jack Ring, Philips and Thales’ Standard Essential Patent Fight at the Federal Circuit, District Court, and ITC, C-IP2 Blog (August 18, 2022)

Alexandra J. Roberts, A Poetics of Trademark Law (March 31, 2022). Berkeley Technology Law Journal, Vol. 38, No. 1, 2023

Brenda M. Simon, Preserving the Fruits of Labor: Impediments to University Inventor Mobility (May 17, 2021). Tennessee Law Review, Forthcoming

Brenda M. Simon, Using Artificial Intelligence in the Law Review Submissions Process (May 19, 2022). UC Davis Law Review, Forthcoming

Tuan Tran, From Great Ideas to Global Impact – A Talk with Andrew Byrnes, C-IP2 Blog (July 28, 2022)

Shine (Sean) Tu and Paul R. Gugliuzza and Amy Semet, Overqualified and Underrepresented: Gender Inequality in Pharmaceutical Patent Law (November 3, 2021). Brigham Young University Law Review, Vol. 48, forthcoming, Temple University Legal Studies Research Paper No. 2021-44, WVU College of Law Research Paper No. 2022-001

 

Categories
Copyright Uncategorized

C-IP2 Statement Commemorating Marybeth Peters

C-IP2 is saddened by the death of former Register of Copyrights Marybeth Peters — an accomplished and inspiring copyright lawyer who led the U.S. Copyright Office from 1994-2010. Register Peters began her love affair with copyright on Valentines Day of 1966 with her appointment as a music examiner in the former Music Section of the Examining Division. She held numerous positions at all levels in the Copyright Office, ultimately culminating with her role as Register. 

Register Peters’ contributions to the law are enshrined in the Copyright Act, the Digital Millennium Copyright Act, and the numerous regulations implementing them. Her wise counsel will live on in untold hours of advice rendered to Members of Congress, various administration officials, and the many authors, practitioners and scholars who make their careers in the copyright world.  

Those scholars and practitioners include scholars at C-IP2 who remember Marybeth with thanks for her gifts of mentorship, her passion for knowledge and learning, and the kindness she showed us as we also pursue our love of creativity and innovation.  

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From Great Ideas to Global Impact – A Talk with Andrew Byrnes

The following post comes from Tuan Tran, a rising 3L at Scalia Law and a Research Assistant at C-IP2.

2022 Andrew Byrnes event flyer
Click on image for full-size PDF flyer.

Small ideas can lead to big changes, which in turn can make a significant impact on the world, but—as technology executive, attorney, and investor Andrew Byrnes knows well—this is no easy task.

On May 4, 2022, Mr. Byrnes gave a talk co-hosted by the Center for Intellectual Property x Innovation Policy (C-IP2) at George Mason University, Antonin Scalia Law School, and Business for a Better World Center, School of Business, George Mason University. With his background and experiences in both the legal and technology industries, Mr. Byrnes shared his knowledge about how just a single idea can be transformed to make a great impact on society. His talk focused on two main points: how ideas are developed, and the framework he has used to implement and transform those ideas into something impactful.

According to Mr. Byrnes, the first step is “finding the idea.” There are three principles involved in the process: be curious, look at intersections, and be passionate. The first principle is to be open to the possibility of having a great idea that can either address a challenge or take advantage of an opportunity. It is important to listen and be observant, because the more one talks with new people about new topics in different contexts, the more one will be likely to come up with interesting and powerful new ideas. One of the key things to keep in mind is to not waste time looking for a perfect idea, because a big idea is usually not presented initially in its complete form. Instead, it is usually presented as smaller ideas that are eventually brought together. Second, “looking at intersections between disciplines and industries” means to be curious and examine known things and combine them “in ways that they haven’t been combined before.” For example, with patents, “most inventions are combinations of known elements.” The third principle stands out as the most important one: being passionate about the pursuit of the idea. Without passion, it is extremely difficult to go from that great idea to real-world impact.

Mr. Byrnes has laid out a framework that involves the most crucial aspects of how to accomplish the goal of transforming ideas into impactful innovation. The framework has “five pillars” in a “hub-and-spoke” formation: legal clearance, intellectual property (IP) protection, market validation, operationalization, and user adoption. As Mr. Byrnes explained, “The reason why I have this hub-and-spoke model is it’s not remotely linear. You . . .  have to do all of these things in sequence and at once, and once you’ve gone through all of them, you have to go back and do them all again, because the world is dynamic, your idea is dynamic, and the operationalization of the idea will require you to . . .  adjust over time.” Following is the discussion of the five pillars.

Legal Clearance

This pillar begins by “evaluating the existing law.” It is essential to understand the related law and how it could impact what will be done with the ideas, including any legal barriers that prevent the implementation of an idea. When as is common the law is unclear, there are two choices, both with costs and opportunities. Putting a hold on the idea can help avoid potential legal problems, but that might result in being left behind when the competitors decide to engage in similar markets or to produce similar products. It may be difficult to enter the market later. On the other hand, proceeding with the idea when the law is unclear might be costly later after the regulators or courts say that the implementer cannot do what they have been doing. Therefore, a company needs legal advice to understand all aspects of the related law before implementing any ideas so that the company can come up with the most suitable strategy. Lawyers are a helpful source, and—for any startups in the Northern Virginia area—so is the Innovation Law Clinic at George Mason University Antonin Scalia Law School.

IP

Mr. Byrnes pointed out that there are “many facets” involved in IP, the second pillar. Important forms of IP for protecting one’s inventions and businesses are patents and trademarks. In short, a patent is “the grant of a property right to an inventor by the government” that can “exclude anyone [else] from making, selling, or using the invention for a [specific] period of time.” Not every idea or invention can be patented, because there are some legal requirements for patent protection; trade secrets may be able to provide protection where patents cannot. However, where applicable, patent protection can be valuable for limiting competition during the life of the patent, raising the valuation of a company, and potentially for licensing purposes. When it comes to patent protection, filing as soon as possible is important because the first inventor to file a patent application will have priority. Also, it is advisable to keep documentation and to have written agreements with employees and collaborators, if any, to ensure the ownership of our idea. Trademarks are also important. A great idea may not succeed if the consumers or clients cannot find the product or service or associate it with your company. Ideally, select a trademark “that is as strong as possible” at an early stage to ensure maximum brand protection.

Market Validation

After legal clearance and protecting IP, the third pillar is market validation. Even “a legal and protected idea” is not impactful when people do not need it. As mentioned earlier, the world changes at a fast pace, so what people needed in the past might not be what they find important in the present. Thus, to build a sustainable business from great ideas, it is vital to “(re)visit demand,” “assess the model,” and “engage prospects directly.” When revisiting demand, implementers should ask themselves whether their ideas are solving any problems or providing solutions to “pain point[s]” they envisioned at the beginning or some other problems they have developed over time. In terms of economics, business models should be assessed for their sustainability. Obtain feedback from clients and consumers using a variety of methods, both traditional, e.g., customer surveys, and creative. For example, Arctop utilizes neuroscience technology to develop an app that can evaluate a user’s experience with a product based on the user’s brain activity. This method can be a better representation of customer satisfaction than what is available through a rating system or survey.

Operationalization

As Mr. Byrnes says, it is exciting to confirm that people still love and want our ideas, “but we actually have to get it done.” The operationalization area or fourth pillar is the “get-stuff-done” (the “GSD”) stage. There are three main tasks involved in this stage: “building the right GSD team, . . . focusing on execution, and then prioritizing efficiency and viability.” Building the GSD team is the most important task. Mr. Byrnes lists being emotionally intelligent, curious, diverse in perspective, synergy-seeking, resilient, and confident as important characteristics for team members. The more people in the team who have these characteristics, the more effectively and efficiently the team members can collaborate to accomplish mutual goals. Second, “ideas alone are not good enough”; the focus needs to be on execution. Avoid “mak[ing] the perfect enemy of the good.” For example, a team may wait to act if their vision of the ways things will occur is not realized, but the result may be that, “if you wait that long, … the world’s going to pass you by.” Therefore, implementers need to be confident in the team they have built and the accomplishments they have achieved in earlier stages. As Mr. Byrnes states, “be biased to action, and that’s most likely the best risk-minimizing approach.” In addition, “prioritizing efficiency and viability” is crucial. By “spend[ing] no more money than you’re making,” the team does not “hav[e] to seek as much outside investment and engagement over time.”

User Adoption

The last pillar of the framework is about conveying to the world what you are doing. To be successful at this stage, Mr. Byrnes states, it is important to have “widespread visibility,” “a compelling narrative,” and “third-party validation.” There are several tools to help in achieving widespread visibility: “earned media,” paid advertisements, or “owned” media, such as social media. Although all of these tools helping reach as many customers as possible, the most suitable tool should be chosen carefully depending on the situation. The tools are most useful only when there is a compelling narrative to deliver to the target audience. It takes effort to come up with a unique narrative, but in general, a compelling narrative should convey a key benefit of the products directly and concisely. Finally, products and services will garner more trust and credibility when potential customers see others whom they know and trust approving or using those products or services. Thus, start-up companies are highly encouraged to seek third-party validation, whether from other companies, non-profit organizations, governments, or others.

A small idea can make significant impact on society, but the path from forming an idea to making the impact is challenging. Many companies have struggled to make impactful innovations because of the lack of relevant knowledge and experiences. During the talk, Mr. Byrnes pointed out several unique problems and a sophisticated framework of five pillars to overcome those problems. Although following the five-pillars model might not guarantee success, it significantly improves any company’s chances of creating impactful innovations quickly and effectively.

Categories
Uncategorized

C-IP2 2022 Summer Progress Report (March-May 2022)

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

As we embark upon the Independence Day holiday weekend and contemplate the profound changes in our nation, we are gratified to report that C-IP2 has stayed the course and continues to deliver on our mission with a rich offering of programs from March through May of this year. We launched the eighth iteration of the Thomas Edison Innovation Law and Policy Fellowship in March and welcomed our 2022-2023 cohort of Fellows in the Digital Innovation Pilot Space at Mason Square (formerly Arlington Campus). April was marked by a fireside chat between GRAMMY Award-winning composer Maria Schneider and C-IP2 Senior Fellow for Copyright Research and Policy and Senior Scholar Sandra Aistars; a World IP Day webinar co-hosted with ITIF, Geneva Network, the Hudson Institute, Property Rights Alliance, and the U.S. Chamber of Commerce; and an academic roundtable, Ensuring Diversity and Inclusivity in Copyright, held in person in California. In May, C-IP2 also hosted a talk by technology executive, attorney, and investor Andrew Byrnes and completed preparations for the virtual 2022 WIPO-U.S. Summer School on Intellectual Property, which ran for the first two weeks in June and will feature in our next report.

Taken together, all of our programs and publications show why we are now a Top 20 IP Program in US News. We’re looking forward to many more excellent events and scholarship within the coming months! In the meantime, I wish you a great summer and the best of health.

Celebrating One Year as C-IP2!

C-IP2 logo

This July 1, our center celebrates a year since our name change from “CPIP” to the Center for Intellectual Property x Innovation Policy (C-IP2, also: C-IP2)!

We’re still adjusting to saying “the Center for Intellectual Property by Innovation Policy” and “sip-squared”—but it’s catching on!

Most importantly, though, we’re excited to see how the name change has and continues to facilitate our center’s mission to “produc[e] research, education, and service at the intersection of IP and innovation policy to better understand and shape the means of innovation as a positive force for good.” We are excited that the name change has already broadened our reach and impact and allowed us to invite a number of scholars, speakers, and commentators whom we were eager to collaborate with but with whom we had not worked previously. This widening of our circle of collaborators was both the right thing to do on its own and likely contributed to our new Top 20 status in the latest U.S. News IP specialty rankings.

C-IP2 Hosted & Co-Hosted Events

Thomas Edison Innovation Law and Policy Fellowship
On March 24-25, C-IP2 hosted the first in person meeting of the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship. The Edison Fellowship, now in its eighth iteration, 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 2022-2023 Distinguished Commentators include Professors John Duffy, Justin Hughes, Zorina Khan, Michael Risch, and Mark Schultz, and this year’s Fellows include Prof. Sandra Aistars, Mary Catherine Amerine, Jeffrey Depp, Melissa Eckhause, Dr. Ani Harutyanyan, William Matcham, Dr. Jonathan Putnam, Kirk Sigmon, Carolina Torres-Sarmiento, and Yao Zhou. The program is led by Prof. Eric Claeys, Prof. Sean O’Connor, and Joshua Kresh. This year’s paper topics include fair use and remastering copyrighted material, cross-country analysis of intellectual property rights, standards and green technology, public-private collaboration and IP rights, copyright and public art, image licensing in the digital age, antitrust and SEPs, and a critique of the Andy Warhol Foundation decision.

Fireside Chat
On April 14, C-IP2 and George Mason University’s Arts Management Program co-hosted a fireside chat, Beyond the Notes with Maria Schneider – A Conversation about Respecting Artist Rights, with GRAMMY Award-winning composer Maria Schneider and Prof. Sandra Aistars as part of Ms. Schneider’s activities as an Artist-in-Residence with Mason’s Center for the Arts. You can read about the event on C-IP2’s blog.

Webinar
On April 26, C-IP2 co-hosted a World IP Day webinar with Information Technology & Innovation Foundation (ITIF), Geneva Network, Hudson Institute, Property Rights Alliance, and the U.S. Chamber of Commerce entitled IP Stories: Innovating for a Better Future in which a panel of young professionals across a variety of IP-intensive sectors spoke about IP in their industries. A recording of the panel is available here. (The event was also mentioned on the website Songpreneurs.)

Academic Roundtable
On April 28-29, C-IP2 hosted an academic copyright roundtable in Oceanside, California, that focused on Ensuring Diversity and Inclusivity in Copyright. The event was led by Prof. Sandra Aistars, who was joined by a group of academics and industry professionals to examine historical critiques of access to the copyright system, to think proactively about how to address such critiques in a way that will ensure a robust copyright regime, and to discuss how to improve access to IP protections for all rights holders.

Visiting Speaker Event
On May 4, C-IP2 hosted an in-person talk with technology executive, attorney, and investor Andrew Byrnes entitled “From Great Ideas to Global Impact: A Talk with Andrew Byrne.” Mr. Byrnes discussed the path from developing innovative ideas to achieving broad impact, including key legal issues and business imperatives. Leveraging experiences from his decades-long career in the private and public sectors working alongside innovators and entrepreneurs, Byrnes offered insights on leadership, building high-functioning teams, engaging policymakers, and other critical stakeholders, and navigating existing and emerging regulatory regimes and challenges. (Event also mentioned in the Center for Innovation and Entrepreneurship’s Summer Semester 2022 Newsletter)

News and Speaking Engagements

We are pleased to welcome and announce the academics who have joined C-IP2 over the course of March through May 2022 as Scholars: Dr. Bowman Heiden and Professor Toshiko Takenaka.

Dr. Bowman Heiden, along with co-authors Drs. Rudd Peters and Igor Nikolic, posted their book chapter “Designing SEP Licensing Negotiation Groups to Reduce Patent Holdout in 5G/IoT Markets,” which is part of the upcoming book project 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things, co-edited by Professors Jonathan Barnett and Sean O’Connor.

The virtual 7th Annual Advanced Patent Law Institute was co-hosted by George Mason University Antonin Scalia Law School and the University of Texas School of Law on March 15-17, 2022. Included among the planning committee and speakers were C-IP2 Advisory Board Members the Hon. Paul Michel and Mr. David J. Kappos; Senior Scholar Prof, John F. Duffy; and Scholar Prof. Dmitry Karshtedt.

Several C-IP2 affiliates—including the Hon. Paul Michel (ret.), Prof. Chris Holman, Prof. Erika Lietzan, and Prof. Kristen Osenga—signed a March 17 letter to U.S. Secretary of Health and Human Services the Honorable Xavier Becerra regarding the Bayh-Dole Act.

IP at Scalia Law – In the new U.S. News Rankings, Antonin Scalia Law School’s Intellectual Property subject area is now ranked as a Top 20 IP program.

Mason Gold – C-IP2 congratulates George Mason University on its 50th birthday, which the university celebrated on Thursday, April 7!

Changes to Mason in Arlington, Virginia, home of Antonin Scalia Law School – On April 6, the groundbreaking ceremony was held for Fuse at Mason Square (formerly the Arlington Campus). Read more about Mason’s future plans in Arlington at Virginia Business and ARLnow.

  

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)

    • From March 24-25, participated as a Fellow during the initial meeting of the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship
    • On March 30, participated as a panelist for the webinar “My AI Wrote This; Can I Get a Copyright?,” which was hosted by ACT | The App Association (to learn more and to view a recording of the panel, please click here)
    • From March 31-April 1, served as a paper commentator for the Law & Economics Center’s Research Roundtable, The Data-Competition Interface
    • Organized and hosted an online discussion with Dr. Ryan Abbott, Attorney of Record for the claimant seeking to register A Recent Entrance to Paradise, the visual artwork of an AI, unassisted by a human, for copyright protection with the United States Copyright Office, examining the legal and policy implications of the Office’s refusal to register on March 17, 2022. A recording of the event can be found here, and please also see this C-IP2 blog post by Prof. Aistars about the event.
    • Organized and supervised clinic student participation in a virtual April 12 event entitled Protest and Political Art: What Does the Law Allow? Co-hosted by the Arts & Entertainment Advocacy Clinic and Washington Area Lawyers for the Arts (WALA), the event featured photographer and documentarian Michele McMahon and included an audience Q&A. The students presented legal information concerning copyright, right of publicity, privacy, and other related issues implicated by covering protest marches and licensing images for commercial use.
    • Organized and participated in the April 14 fireside chat with GRAMMY Award-winning composer Maria Schneider
    • On April 22, spoke on a panel at the Fordham 29th Annual IP Conference
    • Organized and participated in a roundtable on Ensuring Diversity and Inclusivity in Copyright, which C-IP2 hosted in California from April 28-29
    • On May 9, attended the Association of American Publishers (AAP) 2022 Annual General Meeting

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

    • Was co-lead author with Prof. Adam Mossoff for regulatory submission Response to Call for Views on Standard-Essential Patents and Innovation, which was submitted to United Kingdom Intellectual Property Office on March 1
    • On April 5, spoke on the panel “Competition and Intellectual Property: How to Create a Diverse Innovation Ecosystem?” at LeadershIP 2022 in Washington, D.C.
    • Was quoted in an April 7 IPWatchdog article by Eileen McDermott entitled “O’Malley, Kappos, Michel and Other Experts Debate How Anti-IP Narratives are Threatening U.S. National Security”
    • On April 21, spoke at EUI Florence School of Regulation Standard Essential Patents: The Evolving Framework conference
    • On May 9, with Prof. Adam Mossoff, submitted a comment to the EU Commission regarding SEPs. The signees included by C-IP2 Faculty Director Sean O’Connor; C-IP2 Board of Advisors members Bowman Heiden, the Honorable Andrei Iancu, the Honorable David Kappos, the Honorable Judge Paul Michel, and the Honorable Judge Randall Rader; C-IP2 Senior Scholar Kristen Osenga; and Scalia Law professors the Honorable Joshua Wright and John Yun. (Click here to read the comments; click here to read the related May 17 IPWatchdog post by Steve Brachmann.)

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

    • From March 9-10, participated in the USPTO Patent Advisory Committee Public Meeting
    • Participated in the Leahy Institute of Advanced Patent Studies, the 77th Annual Conference by the Naples Roundtable, which was held online from March 16-18
    • On April 5, attended the ABA-IPL Section Leadership Dinner
    • On April 26, attended the AI Committee Meeting, Administrative Conference of the United States

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

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

    • In March 2022, latest Resolution Alley column, entitled “Handling Seemingly Irreconcilable Expert Opinions,” was published in the New York State Bar Association Entertainment, Arts & Sports Law Journal (Resolution Alley is a regular column Mr. Cheng writes that addresses the use of ADR in the entertainment, arts, and sports industries)
    • On March 2, gave a presentation to the Allegheny County Bar Association ADR Committee on “Key Issues and Considerations for Conducting Remote Mediations”
    • On March 9, gave a presentation to the American Arbitration Association’s West Coast Roundtable entitled “Do You Know When and How an Arbitrator Can Issue a Third-Party Discovery Subpoena?”
    • On March 14, was a panelist on a program entitled “ADR Ethics and Inclusion – How We Can Do Better,” which was sponsored by the New York State Bar Association Commercial and Federal Litigation Section
    • On March 28, gave a guest lecture in Joan Stearns Johnsen’s Mediation Advocacy class at the University of Florida Levin College of Law
    • On March 28, served as a facilitator for a Commercial and Employment Law Practice Group (for mediators) sponsored by the Association of Conflict Resolution of Greater New York
    • On April 18 and April 28, 2022, trained a group of mediators on “Remote Mediation Using Zoom” and “Ethics Issues and Standards of Conduct” for the New Jersey Institute for Continuing Legal Education
    • On April 19, 2022, gave a guest lecture in Norman Feit’s Commercial Litigation Drafting and Mediation class at Fordham University School of Law
    • On May 3, gave a presentation to the ABA Section of Dispute Resolution’s Early Dispute Resolution Committee on “A New Way to Deliver the Mediator’s Proposal”
    • On May 18, participated in a panel presentation given at the New Jersey State Bar Association’s Annual Meeting in Atlantic City entitled “Practical Tips to Enhance the Mediation Process” (click here for more information)
    • On May 19, spoke on a panel hosted by the International Institute for Conflict Prevention and Resolution entitled “When to Consider Mediation and How to Identify Opportunities for Settlement” (click here for more information)
    • On May 24, spoke on a virtual program hosted by the New York City Bar Association entitled “Adding Mediating to Your Career: How to Get Started in 2022”

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

    • From March 24-25, participated in the initial meeting of the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship

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)

    • Served as a speaker and on the planning committee for the 7th Annual Advanced Patent Law Institute, which was co-hosted virtually by George Mason University Antonin Scalia Law School and the University of Texas School of Law on March 15-17
    • From March 24-25, served as a Distinguished Commentator during the initial meeting of the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship

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

    • On April 22, spoke on a panel on “Technology, Regulation, and Economic Development” at the State Level Issues in Technology, Regulation, and Economic Development conference, which was hosted by the Nebraska Governance and Technology Center
    • In May, became a Visiting Scholar at University of Texas at Austin McCombs School of Business 

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 March, served as a panelist for the Dean’s Roundtable, Master of Jurisprudence Consortium Conference, University of Arizona
    • On March 25, presented “AI Goes to War: From Alexa to Terminator – How to Assure Corporate Accountability for Algorithmic and Autonomous Machine Atrocities in Cyberwarfare” at the Law Review Symposium on Artificial Intelligence and the Law at the Northern Kentucky University Salmon P. Chase College of Law
    • On April 26, presented on “Cyberfog: The use of AI, Bots, and Synthetic Media in International Conflicts and Terrorism” at the 62nd CICA International Conference on Security, Threads for Peace and Security: Asia vs West, at Universidad Nebrija, Madrid Spain
    • Was mentioned in an April 29 MENAFN article entitled “UNH Franklin Pierce School Of Law Hosts Intellectual Property Summer Institute (IPSI)”

Dr. Bowman Heiden (C-IP2 Scholar; Co-Director, Center for Intellectual Property (CIP), University of Gothenburg, Visiting Professor, University of California, Berkeley)

    • Joined C-IP2 as a Scholar in March 2022
    • On April 21, spoke at EUI Florence School of Regulation Standard Essential Patents: The Evolving Framework conference

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

    • Signed a March 17 letter to U.S. Secretary of Health and Human Services the Honorable Xavier Becerra regarding the Bayh-Dole Act
    • Was featured in the April 6 Patently-O post “Welcome Prof. Chris Holman”

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

    • Was mentioned in a March 4 IPWatchdog post entitled “Referencing Science Fiction: An Ode to (Slightly) Livening Up Patents” by Trenton Morton, as well as in a March 4 article in The Shepherd of the Hills Gazette entitled “An Ode To (Slightly) Livening Up Patents” by Sammy Edwards

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

    • From March 11-28, taught a U.S. patent law course for associates and technical advisors at Licks Attorneys, a law firm in Rio de Janeiro, Brazil
    • Served as a speaker and on the planning committee for the 7th Annual Advanced Patent Law Institute, which was co-hosted virtually by George Mason University Antonin Scalia Law School and the University of Texas School of Law on March 15-17, 2022; on March 15, participated in the written description panel at the Institute
    • On March 18, presented in-progress paper on Adversarial Patents and Pharmaceutical Examination at Universidad do Estado do Rio De Janeiro
    • Mentioned in a March 18 article on Bloomberg Law by Samantha Handler entitled “Biogen’s Rehearing Denial Lays New Hurdles for Pharma Patents”
    • On March 29, spoke on comparative patent law issues at Universidad del Salvador in Buenos Aires
    • On April 12, organized and participated in a panel of Court of Federal Claims judges at the Giles Rich Inn of Court meeting in Washington, D.C.
    • On April 29, spoke on a panel at Stanford Law School during the Use Your Discretion: Changing Standards PTAB conference

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

    • Participated in an April 8 Federalist Society teleforum on Securing Innovation: How Patent Law Shapes U.S. National and Economic Security 

Joshua Kresh (C-IP2 Managing Director)

    • Participated in the March 24-25 initial meeting of the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship
    • On April 4, attended LeadershIP 2022 in Washington, D.C.
    • Participated in a roundtable on Ensuring Diversity and Inclusivity in Copyright, which C-IP2 hosted in California from April 28-29
    • On May 5, joined PhRMA in attending the National Inventors Hall of Fame annual induction event
    • On May 17-19, coordinated a session at the AIPLA Spring Meeting in New Orleans, LA

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

    • On April 7, gave a presentation on “Repositioning generic drugs: empirical realities” at the Innovation Policy Colloquium organized by Professors Rochelle Dreyfuss and Katherine Strandburg at New York University School of Law
    • On April 8, gave a presentation on “A future for generic drug repurposing” at The evolution of the public health and biomedical innovation, organized by the Cambridge University Science and Policy Exchange (CUSPE)
    • On April 25, gave a presentation on “Repositioning for rare diseases: Too much, too little or just right?” at a webinar organized by the Nordic Intellectual Property Law Review
    • On April 28, hosted a talk by Rochelle Dreyfuss on “ISDS and Intellectual Property in 2020 – Protecting Public Health in the Age of Pandemics” at a CIPIL Evening Seminar, organized by the Centre for Intellectual Property and Information Law, University of Cambridge (for a recording of Prof. Dreyfuss’s talk, please click here) 

Erika Lietzan (C-IP2 Senior Scholar; William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)

    • Signed a March 17 letter to U.S. Secretary of Health and Human Services the Honorable Xavier Becerra regarding the Bayh-Dole Act
    • Participated in an April 15 Hudson Institute virtual panel on “Drug Patents and Evidence-Based Policymaking in Patent Law”

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)

    • Served as moderator for “Beyond Geopolitics – Contending with US-China Intellectual Property Relations for Fair Gains” at the 36th Marcus Evans IP Law Summit on March 27-29, 2022, in New Orleans, Louisiana
    • Served a moderator and co-convener with George Washington University Law School for Music Copyright Infringement: Global Perspectives Virtual Conference on March 18, 2022
    • Participated as a discussant at a virtual roundtable on “Blockchain + Antitrust: The Decentralization Formula” hosted by the Classical Liberal Institute at the NYU School of Law on March 11, 2022
    • On March 10, participated virtually as a panelist on “Digital Health Data, Privacy, and Antitrust” for a symposium co-hosted by the DePaul University College of Law Mary and Michael Jaharis Health Law Institute and Center for Intellectual Property Law & Information 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)

    • Participated in a roundtable on Ensuring Diversity and Inclusivity in Copyright, which C-IP2 hosted in California from April 28-29

Loren Mulraine (C-IP2 Senior Scholar; Professor of Law, Director of Music and Entertainment Law Studies, Belmont University – College of Law)

    • Participated in a roundtable on Ensuring Diversity and Inclusivity in Copyright, which C-IP2 hosted in California from April 28-29

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

    • On May 6, participated in a roundtable on “Challenges and Opportunities in the Creative Industries: The Good, the Bad, & the Ugly” hosted by Hudson Institute
    • On May 18, the American Law Institute adopted Prof, Newman’s restatement draft (click here for more details; click here to watch Prof. Newman discussing his project in 2020)

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

    • On March 11, delivered a lecture on NFTs at the DX ARTS program at the University of Washington
    • From March 24-25, participated in the initial meeting of the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship
    • On April 1, spoke at a University of Oregon symposium regarding his new book project, The Means of Innovation: Creation, Control, and a New Method+ology, summarizing arguments that innovation can be better understood when classed into three categories of art, science, and law, each used in an older, broader sense. In turn, these contain nested sets of methods ranging in degrees of abstraction from concepts or dispositions down to specific algorithmic methods.
    • On April 7, taught a session on “Government Policy over Public Funds in Supporting Innovations” as part of the WIPO-WTO Advanced Course on Topical IP Policy Issues, which ran from March 28-April 8
    • Cited in an April 13 post on Patently-O on “The Corporation as an Inventive Artificial Intelligence” by Dennis Crouch
    • On April 21, presented “In the Court of TikTok: Are Fan Mashups That Call Out Copying Changing Music Writing Credits?”, a project with Mary Catherine Amerine (Shearman & Sterling, and current Edison Fellow) during a panel at the Emily C. & John E. Hansen Intellectual Property Institute’s 29th Annual IP Conference
    • Participated in a roundtable on Ensuring Diversity and Inclusivity in Copyright, which C-IP2 hosted in California from April 28-29
    • In May, participated with Lateef Mtima (Howard University School of Law; IIPSJ) and Lita Rosario, Esq. (WYZ Girl Entertainment Consulting) in a virtual panel on IP and social justice hosted by the Practicing Law Institute
    • On May 5, performed vocal, guitar, and harmonica with Jon Knight as an acoustic rock duo under the name Buzzard Point Caucus for Law Rocks Washington D.C. for Ukraine, a special charity event hosted in Washington, D.C. by annual charity event Law Rocks
    • In May, served as a speaker and group moderator for the WIPO Advanced Training Course on Intellectual Property (IP), Technology Transfer and Licensing for Caribbean Countries, organized by the World Intellectual Property Organization (WIPO). Moderated sessions were on the themes “From Public Research to Private Initiative (Private Public Partnership),” “Cooperation between Intellectual Property Offices (IPOs) and Technology Transfer Offices (TTOs),” “How to create and Fund Technology Clusters,” and “Understanding and Drafting University IP Policies covering Faculty, Staff, and students.”

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

    • Signed a March 17 letter to U.S. Secretary of Health and Human Services the Honorable Xavier Becerra regarding the Bayh-Dole Act
    • Signed an amicus brief in the case Epic Games, Inc. v. Apple Inc.
    • On April 6, spoke on a panel on “Agency Approaches to the Antitrust-Intellectual Property Interface Under the Biden Administration” at the 2022 ABA-IPL Section Annual Meeting
    • On April 6, was cited by in a MLex article by Khushita Vasant: “[Jennifer] Dixton was responding to comments by Kristen Osenga of the University of Richmond that a new draft policy statement concerning SEPs to promote good-faith licensing negotiations is tilted in favor of patent users as it prohibited patentholders from seeking injunctions. The draft also addresses the scope of remedies available to patentholders that have agreed to license their SEPs on fair, reasonable and non-discriminatory, or Frand, terms”
    • On April 20, gave the 2022 Gene and Katy Simonds Lectureship in Democracy lecture entitled “The Intersection of Antitrust and IP: Stay in your lane!” at Southern Illinois University School of Law
    • On April 20, spoke on a virtual panel, Understanding Draft Standard-Patent Policy, which was hosted by the Hudson Institute
    • Participated in the UNH Franklin Pierce School of Law’s April 24-26 Spring Summit, “Exploring Intersections,” on FRAND and SEP issues, and joined on the World IP Day panel on IP and innovation (click here to view a recording of the panel)

Eric Priest (C-IP2 Senior Scholar; Associate Professor, University of Oregon School of Law)

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 March 2, spoke on a webinar hosted by Geneva Network on “The role of intellectual property rights in preparing for future pandemics”
    • From March 24-25, served as a Distinguished Commentator during the initial meeting of the 2022-2023 Thomas Edison Innovation Law and Policy Fellowship
    • Organized and spoke at the March 28 University of Akron School of Law’s 24th Annual Symposium on Intellectual Property Law and Policy
    • Participated in a roundtable on Ensuring Diversity and Inclusivity in Copyright, which C-IP2 hosted in California from April 28-29

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

    • On April 1, presented her 2021-2022 Edison Fellowship article, An Empirical Look at the Patent Trial and Appeal Board, at the annual PATCON seminar at Boston College Law School
    • Presented a new article on “An Empirical Analysis of Patent Law and Venue” at the Benjamin N. Cardozo School of Law’s May 19-20 Seventh Annual Civil Procedure workshop for all civil procedure professors
    • Was quoted in the May 25 Bloomberg Law article “Patent Small Claims Pitch, Long Dormant, Revived by Agency” by Riddhi Setty

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)

Toshiko Takenaka (C-IP2 Scholar; Washington Research Foundation/W. Hunter Simpson Professor of Technology Law, University of Washington School of Law)

    • Joined C-IP2 as a Scholar in April 2022
Scholarship & Other Writings

Mateo Aboy, Kathleen Liddell, Matthew Jordan, Cristina Crespo, and Johnathon Liddicoat, European patent protection for medical uses of known products and drug repurposing (2022) 40 Nature Biotechnology 465

Sandra Aistars, Paradise Rejected: A Conversation about AI and Authorship with Dr. Ryan Abbott, C-IP2 Blog (March 23, 2022)*
*Includes an April 6, 2022, response to Dr. Ryan Abbot by David Newhoff, “In Opposition to Copyright Protection for AI Works”

Jonathan M. Barnett, The Economic Case Against Licensing Negotiating Groups in the Internet of Things, Journal of Antitrust Enforcement (2022)

Jonathan M. Barnett, The “License as Tax” Fallacy, 28 Michigan Technology Law Review 197 (2022)

Jonathan M. Barnett, The Market Challenge to Populist Antitrust, Truth on the Market (May 17, 2022)

Jonathan Barnett, Regulatory Rents: An Agency-Cost Analysis of the FTC Rulemaking Initiative (March 28, 2022). Forthcoming in FTC’s Rulemaking Authority (Concurrences 2022)

Jon M. Garon, Legal Implications of a Ubiquitous Metaverse and a Web3 Future (January 3, 2022)

Jon M. Garon, Parenting for the Digital Generation – The Parent’s Guide to Digital Education and the Online Environment (Rowman & Littlefield 2022)

Jon M. Garon, Towards a Conceptual Framework of Entertainment Law for the Twenty-First Century, 102 J. Pat. & Trademark Off. Soc’y 203 (2022)

Thomas Grant & Scott Kieff, Attorneys Can Promote Trade, Security Amid Global Conflict, Law360 (April 13, 2022)

Chris Holman, The Definiteness Implications of Using “Examples” to Define Claim Terms, Patently-O (April 7, 2022)

Chris Holman, Induced Infringement and the Section 286 Statute of Limitations, Patently-O (April 10, 2022)

Scott Kieff and Thomas Grant, The ITC’s Crucial Role in Countering Russia’s Aggression, Law360 (March 18, 2022)

Scott Kieff & Thomas D. Grant, It’s time for America’s trade umpire to cry foul against Russia’s aggression, The Hill (March 19, 2022)

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, 71 American University Law Review 1285 (2022)

Jennifer Mascott and John Fitzgerald Duffy, Executive Decisions After Arthrex (March 10, 2022). Supreme Court Review, Forthcoming, George Mason Legal Studies Research Paper No. LS 22-10

Xuan-Thao Nguyen, Danielle M. Conway, Lateef Mtima, Willajeanne F. McLean, and Emily Michiko Morris, Transnational Intellectual Property Law (West Acad. Publ’g 2d ed. 2022)

Kristen Jakobsen Osenga (2022) “Efficient” Infringement and Other Lies, Seton Hall Law Review: Vol. 52: Issue 4, Article 4

Kristen Osenga, Protecting Our Nation’s Back Doors: Improving Patent Policy for National Security, Hudson Institute (May 16, 2022)

Kristen Osenga, Two Lies and the Truth About the 2021 Draft SEP Licensing Policy, RealClear Policy (May 18, 2022)

Sean A. Pager & Eric Priest, The Chinese Copyright Dream, 49 Pepperdine Law Review 733 (2022)

Yogesh Pai and Prashant Reddy T, View: The vaccine patent waiver wavers, The Economic Times (March 20, 2022)

Ruud Peters, Igor Nikolic, and Bowman Heiden, “Designing SEP Licensing Negotiation Groups to Reduce Patent Holdout in 5G/IoT Markets” (March 1, 2022). Forthcoming in 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things (eds. Jonathan M. Barnett and Sean M. O’Connor, Cambridge University Press 2022)

Eric Priest, An Entrepreneurship Theory of Copyright, 36 Berkeley Technology Law Journal 737 (2022)

Molly Stech, Co-Authorship Between Photographers and Portrait Subjects (Jan 1, 2022). Vanderbilt Journal of Entertainment & Technology Law, Vol. 25, 2022

Molly Stech, Photography, Portrait Subjects, and Copyright Law, C-IP2 Blog (March 14, 2022)

Sabren H. Wahdan, Recap of the Supreme Court’s Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., C-IP2 Blog (March 15, 2022)

Categories
Uncategorized

Comment of 25 Law Professors, Economists, and Former U.S. Government Officials in Response to EU Commission Call for Evidence on Standard-Essential Patents

Led by Prof. Adam Mossoff and C-IP2 Senior Fellow and Senior Scholar Prof. Jonathan M. Barnett, twenty-five law professors, economists, and former United States Government officials—including C-IP2 Advisory Board members the Honorable Andrei Iancu, the Honorable David J. Kappos, the Honorable Paul Michel, and the Honorable Randall R. Rader; Faculty Director Prof. Sean M. O’Connor; Senior Scholar Prof. Kristen Osenga; and Scholar Dr. Bowman Heiden—submitted a letter in response to a “call for evidence” on the licensing, litigation, and remedies of standard-essential patents (SEPs). The response discusses core functions of SEPs in the wireless ecosystem, the lack of evidence of Patent Holdup and Royalty Stacking, assumptions about SEPs and Market Power, the importance of the potential for injunctive relief even for FRAND, levels of licensing, and SEP licensing in SME markets. The letter is available here on SSRN.

Categories
Uncategorized

GRAMMY-winning Composer and Mason Artist-in-Residence Maria Schneider Led Events Across Mason Campuses

The following post comes from Laura Mertens and is cross-posted here from Mason’s Center for the Arts website with permission.

Known for fearless musical exploration and beautifully blurring lines between genres, composer Maria Schneider has earned seven GRAMMY Awards across the realms of jazz, classical, and even her work with David Bowie. Serving as Mason Artist-in-Residence this April, she led a powerful series of events across Fairfax and Arlington campuses with students, faculty, staff, and community members. Launched during the 2019-2020 season, the Mason Artist-in-Residence program connects artists appearing at the Center for the Arts in Fairfax and the Hylton Performing Arts Center in Manassas with communities throughout Northern Virginia in a variety of activities for diverse audiences, creating opportunities for transformational experiences.

Through discussions, open rehearsals, and a culminating concert, the residency helped reinforce how Schneider became a groundbreaking visionary in the field. Events began with Beyond the Notes with Maria Schneider: A Conversation about Respecting Artist Rights, held on April 14 in Van Metre Hall on Mason’s Arlington Campus, and co-hosted by Mason’s Center for Intellectual Property x Innovation Policy (C-IP2) and Arts Management Program. George Mason University Antonin Scalia Law School Professor and Arts & Entertainment Advocacy Clinic Director Sandra Aistars moderated the conversation with Schneider, which was also streamed live to an audience including individuals joining in from Ghana, Nigeria, the UK, and India.

Aistars said, “Maria Schneider seamlessly blends her art and her advocacy. Her skill in both musical composition and arts advocacy is that she moves us to hear what she shows us, often through unconventional means—be it the beauty of the natural world, the poignancy of a shared moment between friends, or the artist’s struggle to preserve dignity and rights in the digital world. She is also fierce. We need artists like Maria who are not afraid to remind corporations, fans, and artists alike to behave ethically towards one another if they hope to maintain a healthy music ecosystem that will sustain the next generations of artists and audiences.”

Schneider discussed her expansive approach to big band instrumentation, noting that the ensemble is a “solid, powerful medium,” but that she loves to push its boundaries to explore further, asking, “How can I stretch this instrumentation?” Weaving together recorded clips of music and conversation, the Thursday event began with a recording of her work “Cerulean Sky,” which combined flute, muted trumpet—and birdsong. She acknowledged, “It doesn’t sound much like a big band, but it is.”

The LA Times has said, “…Schneider’s [music] reaches toward a significant new level of imagination, making hers the first truly novel approach to big jazz band composition of the new century.” She explained to the crowd, “I’ve always been a composer who wants to explore new ground.” She credits her mentors with helping her hone her unique compositional voice, including jazz pianist/arranger/composer/bandleader Gil Evans and the “ethereal quality” of his work, and Bob Brookmeyer, her composition teacher who saw her natural inclination towards jazz despite all her classical training, and encouraged her to go chart for big bands. Of her recent work, the 2021 Pulitzer Prize finalist piece Data Lords, NPR said, “This is music of extravagant mastery, and it comes imbued with a spirit of risk.”

Schneider’s risk-taking has also helped blaze a trail for the trend of crowdfunding, as one of the first artists to sign with ArtistShare, today widely recognized as an early precursor to websites like KickStarter, IndieGoGo, and PledgeMusic. She says ArtistShare founder Brian Camelio explained to her, “One thing you can’t fileshare is the creative process.” She notes that she documents her process on the platform through internet-exclusive streaming videos, sketches of her scores, and photos from rehearsals and concerts. “You can announce you’re doing a project, feature interviews with players, allow fans to become closer to the music. . . I like that I don’t have any anonymous sales.” Releasing her “Concert in the Garden” album on ArtistShare in 2004, she became the first artist to win a GRAMMY Award for an album not available in retail stores. Schneider exhorted artists in the room to “Never give up creative control of your work.”

Attendee and second-year law student Brianna Marie Christenson, a member of Prof. Aistars’ Arts and Entertainment clinic who has worked as a business manager and plans to go into copyright law, said, “Maria Schneider shows creatives how to use a technology built to serve the audience and not the artist, like music streaming platforms, work for both artist and fan. Her use of online platforms to find new fans and bring them to her own site for sale of her repertoire is a brilliant way to handle having a niche audience while trying to recoup on albums. . . .Her leadership in use of crowdfunding is something artists replicate en masse now.”

Schneider has also testified about digital rights before the House Judiciary Subcommittee on Intellectual Property, participated in round-tables for the United States Copyright Office, given commentary on CNN, and filed a class-action lawsuit against YouTube.

Mason Alumnus and Assistant Professor of Jazz Studies John M. Kocur, a saxophonist who also rehearsed for six hours with Schneider and played on the April 16 concert, notes, “Maria Schneider valiantly defends of the rights of musicians against corporate interests. She makes music for social advocacy and advocates for musical justice. The core of her message is that our intellectual property is valuable, and we ought to guard it carefully or our entire culture will suffer.”

While embracing technology to allow artists to be more independent, Schneider also emphasized the need to unplug, telling Mason Jazz Ensemble students in an open rehearsal/Q&A on April 15 at the Center for the Arts: “I don’t believe you can be a great artist unless you give yourself space. Leave your phone at home. Allow yourself to get bored. That’s when you start to imagine things. Dream it up. Make something. You will come through your music.”

Schneider’s rehearsal with the Mason Jazz Ensemble students and additional sessions with the professional Metropolitan Jazz Orchestra culminated in the galvanizing April 16 concert at the Center, with Schneider conducting her own works performed by the ensembles.

Featured Mason Artists-in-Residence in the newly announced 2022/2023 Center for the Arts season, will include Nrityagram Dance Ensemble, Indigenous Enterprise, and the launch of a three-year residency with Silkroad Ensemble. Learn more about the Mason Artist-in-Residence program at cfa.gmu.edu/about/artists-residence.

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A Message From CPIP on Giving Tuesday

CPIP logoAs we enter the holiday season and look ahead to 2020, we hope that you will keep CPIP in mind as you plan your end-of-year giving. Your support is critical to ensuring that CPIP continues its activities and works to engage academics, creators, and innovators in a scholarly dialogue on the importance of intellectual property. CPIP’s programs, events, network of scholars, and in-house staff have made great strides in recent years to bring balance and reason to IP debates, but there is more work to be done. CPIP receives no funding from George Mason University, and it is only through the support of our partners that we are able to fulfill our mission.

Contributions help CPIP:

    • host conferences, roundtables, fellowship meetings, symposia and colloquia, the WIPO Summer School on Intellectual Property, and many other programs that promote an ongoing dialogue on the importance of IP rights

 

    • produce and support the production of a variety of scholarly articles and policy materials that explore the value of IP

 

    • employ an in-house staff of directors and communications specialists who work tirelessly to plan and execute CPIP programs and events

 

    • maintain and grow an international network of scholars, lawyers, and other professionals dedicated to the scholarly analysis of IP

 

As we look ahead to CPIP’s eighth year of operation, we are proud to be a leading academic voice in the discussion of intellectual property rights and the technological, commercial, and creative innovation they facilitate. We have an exciting lineup of programs and events planned for 2020 as well as research and policy work agendas that will focus on key IP issues. The generosity of our partners is essential to CPIP’s success, and we thank you in advance for your support.

Please visit https://cip2.gmu.edu/donate-to-cpip/ to learn more about ways to support CPIP.