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CPIP Second Quarter Progress Report (March-May 2021)

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

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

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

CPIP Hosted & Co-Hosted Events

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

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

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

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

News & Speaking Engagements

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

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

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

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

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

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

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

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

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

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

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

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

Joshua Kresh (CPIP Deputy Director)

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

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

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

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

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

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

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

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

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

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

Mark Schultz (CPIP Senior Scholar; Goodyear Tire & Rubber Company Chair in Intellectual Property Law, University of Akron School of Law; Director, Center for Intellectual Property Law and Technology)

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

Ted Sichelman (CPIP Senior Scholar; Professor of Law, University of San Diego School of Law; Director, Center for Intellectual Property Law & Markets; Founder & Director, Center for Computation, Mathematics, and the Law; Founder & Director, Technology Entrepreneurship and Intellectual Property Clinic)

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

Scholarship & Other Writings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Categories
Healthcare International Law

A View from Both Sides: COVID-19, the TRIPS Waiver, IP Rights, and How to Increase the Supply of Vaccines

scientist looking through a microscopeIssue

The United States and other wealthy nations have access to plenty of COVID-19 vaccine doses and thus are beginning to get the pandemic under control, while less affluent countries do not have access to adequate doses and are still struggling with rising cases. In October 2020, India and South Africa proposed addressing this problem by waiving certain portions of the TRIPS Agreement, the most comprehensive agreement on intellectual property (IP) aspects of international trade among the WTO’s 164 member states. The waiver cites “an urgent call for global solidarity, and the unhindered global sharing of technology and know-how in order that rapid responses for the handling of COVID-19 can be put in place on a real time basis.” While this proposal broadly applies to any COVID-19-related technology, much of the conversation is currently focused on vaccines.

The proposal would temporarily suspend patent rights covering COVID-19 vaccines and possibly also be used to compel the transfer of trade secret “know-how” and “show-how.” Proponents say this would allow any manufacturer to begin production—boosting vaccine supply while slashing prices—to end the surge of cases in less developed nations. Critics argue that the reality is more complicated: the waiver will be ineffective, even harmful, and it would have a devastating impact on our readiness for future health crises.

In Support of the Waiver

For supporters of the waiver, the answer is clear: cases are rising in many nations because they still don’t have the vaccines they need. It’s only reasonable to make exceptions to our ordinary system of business incentives during times of global crisis.

The Biden Administration

That is essentially what U.S. Trade Representative Katherine Tai stated when the Biden Administration announced its support for the waiver: “This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures. The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.”

It affects all of us

WHO Director-General Dr. Tedros Adhanom Ghebreyesus says that the “me-first approach” among powerful nations “is self-defeating and will lead to a protracted recovery with trade and travel continuing to suffer.” Under this rationale, even purely self-interested parties should support the waiver, if only because modern commerce is so globally connected.

Dropping IP barriers will facilitate greater collaboration

Many say the threat of IP litigation prevents the kind of collaboration needed to quickly ramp up production and development, and that a waiver can remove that threat. The president of Médecins Sans Frontières, Dr. Christos Christou, says that “[t]he waiver proposal offers all governments opportunities to take action for better collaboration in development, production and supply of COVID medical tools without being restricted by private industry’s interests and actions, and crucially would give governments all available tools to ensure global access.”

Patents were not meant to impede emergency action

A recent editorial in the journal Nature argues that patents are designed to protect ordinary commercial interests, not to hinder global cooperation against a common threat: “A pandemic is not a competition between companies, but a race between humanity and a virus. Instead of competing, countries and companies need to do all they can to cooperate to bring the pandemic to an end.”

It solves an immediate need without setting a troubling precedent

While opponents of the waiver argue that it will weaken future drug patent protection, Imron Aly and Ahmed M.T. Riaz of Schiff Hardin LLP call those concerns “unfounded” in their post at IPWatchdog. Not only is the current proposal limited specifically to COVID-19, but it was also not created carelessly. Instead, it “has taken substantial international efforts and official international law amendments.” Aly and Riaz say this exceptional action is appropriate if it can succeed where our IP system has yet to do so: “The TRIPS waiver simply allows countries the option to suspend patent enforcement to encourage COVID-19 vaccine production, which makes sense for those countries where current investment has not resulted in vaccine access.”

Even if the waiver doesn’t work, it might work

University of Houston Law Center Professor Sapna Kumar acknowledges a number of functional issues with the waiver approach but notes that it may still have a positive effect on the pandemic: “Overall, the greatest benefit of the Biden Administration’s support for the waiver is that it signals a departure from the prior approach of punishing countries facing health crises and that it might spur pharmaceutical companies to voluntarily increase out-licensing and donations of vaccines.” Her prediction was borne out by a recent pledge to donate 2.3 billion doses by Pfizer/BioNTech, Johnson & Johnson, and Moderna.

Opposed to the Waiver

Opponents of the waiver argue that it will not be effective because it fails to address the real problems. Further, it could actually be detrimental to quality control and supply chains in the present crisis, while quite possibly affecting how pharmaceutical companies choose to allocate investment dollars in the future.

It’s a long process that requires much more than a temporary waiver of licenses

Vaccines are not like other drugs. Writing for Foreign Affairs, Peter J. Hotez, Maria Elena Bottazzi, and Prashant Yadav say that we can’t compare the current situation to similar actions on HIV treatments, and that most nations are not prepared to make use of the patented technology: “Producing vaccines—particularly those as technologically complex as the messenger RNA (mRNA) inoculations against COVID-19—requires not only patents but an entire infrastructure that cannot be transferred overnight.” The authors state that “[t]he effective transfer of such complex technology requires a receiving ecosystem that can take years, sometimes decades, to build.”

We need another way

Professor Yogesh Pai of the National Law University Delhi says that simply waiving trade secret protection won’t automatically disclose everything a manufacturer needs to know. Accessing “hard tacit knowledge of manufacturing/quality control measures for production and clinical data required for regulatory clearances” could require forced technology transfer (FTT) by national governments. He recalls how detrimental such efforts were to India’s economy when it tried FTT with Coca-Cola in the 1970s, prompting the company to leave the country altogether.

Prof. Pai instead recommends efforts to encourage voluntary cooperation: “Where blunt legal instruments don’t work, using track-1 and track-2 diplomacy to place moral coercion on western governments to nudge firms to actively engage in technology licensing may still work wonders.”

“China First” policy?

Sixteen U.S. senators issued a sharply worded letter to the executive branch, questioning the true motives of “China and other countries which regularly steal American intellectual property—like India and South Africa,” and expressing shock that an American president would go along with it: “These nations are falsely claiming that granting such a waiver would speed the development of new vaccine capacity. Nothing could be further from the truth.” Instead, the senators are suggesting that the waiver is being used as a means to unfairly to acquire trade secrets that took massive resources and time to develop.

Reuters reports that “some U.S. officials fear the move would allow China to leapfrog years of research and erode the U.S. advantage in biopharmaceuticals” and quotes a senior U.S. official as saying that the country “‘would want to examine the effect of a waiver on China and Russia before it went into effect to ensure that it’s fit for purpose.’”

IP is not the Issue

A waiver on patent rights, even with the corresponding trade secrets, can only give permission to manufacture. But Eva Bishwal of Fidus Law Chambers writes that the real problems in India “are state inaction, dearth of raw materials and low production capacity.”

According to Patrick Kilbride of the U.S. Chamber of Commerce’s Global Innovation Policy Center, and as cited in Pharmaceutical Technology, “[p]roposals to waive intellectual property rights are misguided and a distraction from the real work of reinforcing supply chains and assisting countries to procure, distribute and administer vaccines to billions of the world’s citizens.”

Low-quality vaccines could do more harm than good

Former USPTO Director Andrei Iancu voiced concern recently at a World IP Day event, asking, “if we waive IP rights, and exclude the original manufacturers, how are we going to control the quality of the vaccines that go into people’s arms? How are we going to control for the fake vaccines? Just last week we saw fake Pfizer vaccines.” And as Philip Thompson points out for IPWatchdog, when investigators are forced to “determine if adverse events or sub-par effectiveness originate from ‘real’ vaccines or fake doses, we should expect global production starts and stops to become much more frequent.”

It will discourage investment in the most critical areas

Pharmaceutical developers invest unfathomable amounts of money into bringing drugs to market. The path to success is long, expensive, and highly uncertain. But what is certain is that successful drugs can yield a profit that covers the loss from failures. Now critics are deeply worried that this waiver will skew future cost-benefit analyses against important classes of medicine. All other things being equal, a developer has a better chance at a positive return by investing in drugs that pose no risk of seizure during a global emergency. As Amanda Glassman of the Center for Global Development writes, the waiver sends the wrong message to innovators and investors: “don’t bother attacking the most important global problems; instead, throw your investment dollars at the next treatment for erectile disfunction, which will surely earn you a steady return with far less agita.” The scramble amongst pharmaceutical giants to develop a vaccine was an all-out race, with good reason, and that’s exactly how it should be. If those companies believe that forfeiture is waiting at the finish line next time around, we might see fewer contestants.

Even “no-profit” vaccine makers appear to oppose the waiver

Pfizer CEO Albert Bourla laid out everything the company has done to combat the vaccine in an equitable manner and argued that “waiver of IP rights could only derail this progress.” And while Pfizer and Moderna are selling their vaccines at a profit, Johnson & Johnson and AstraZeneca have pledged not to do so during the pandemic.

However, it appears that even those companies oppose the waiver. As reported in The Wall Street Journal, the trade group PhRMA, which represents Johnson & Johnson and AstraZeneca among many others, is “lobbying members of Congress to oppose the Biden administration’s support for the waiver.” Johnson & Johnson’s Chief IP counsel Robert DeBerardine says that patent rights are responsible for the breakneck pace of development and that the drug’s makers are the best-equipped people to continue the fight: “What we’re able to do, because we have control of the IP, is to pick the best companies to help us supply the world. If you were to give everything to everybody, you may see a flood of vaccines, but you would have no idea if they’re safe and effective.”

Conclusion

While we share the concerns of other organizations that effective, affordable, and accessible vaccines be made available to all persons regardless of location or wealth, we do not believe that upending longstanding U.S. patent policy for a solution that will do little if anything to increase the vaccine supply is advisable. Strong IP rights remain the best way to incentivize innovation and ultimately increase the supply of life-saving medicines. The Biden administration’s unprecedented support of the proposed WTO IP waiver, while well intended, is likely to create long-term harm and unlikely to have much of an impact on global vaccine supplies. Ultimately, encouraging companies to license IP and engage in voluntary knowledge transfer, along with the sharing of excess doses that are being produced, are methods far more likely to alleviate the vaccine supply issues than waiving IP rights and would be a better path forward out of the current crisis.

Categories
Copyright Legislation

Just What Is the Case with the CASE Act? A Brief Overview

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP.

chrome copyright symbolBy Ryan Reynolds

The phrase “creators have rights, but no remedies” is likely familiar to those aware of the current landscape of copyright protection for individual creators and small businesses (“Creators”). While the Copyright Act of 1976 grants a bundle of rights to Creators for the protection of their works, for years Creators have faced an uphill battle enforcing those rights against infringers. There are many who are optimistic, however, that things might soon change with the passage of “The Copyright Alternative in Small-Claims Enforcement Act of 2020” (CASE Act).

Signed into law as part of H.R. 133, the Consolidated Appropriations Act, [for Fiscal Year] 2021 (“CAA”), the CASE Act creates a Copyright Claims Board (“CCB”) within the Copyright Office to handle small copyright claims (small only in the sense of their relatively modest economic value). As there is some time before the CCB comes into operation, the earliest being December 21, 2021, and the latest June 2022, now is a good time to provide an overview of just what the CASE Act does. Before venturing fully into the mechanics of the CASE Act, however, it is important to first highlight why its supporters felt it was needed.

Why Is It Needed?

Copyright cases are almost exclusively an area of federal jurisdiction, meaning that copyright infringement cases must be brought in a federal rather than state court; however, litigating a copyright infringement case in federal court is anything but easy. First, the average cost of litigating a copyright infringement claim has been estimated at $397,000—a cost that often greatly outweighs any potential recovery for Creators’ works. It is for this reason that many attorneys are simply unwilling to take Creators’ copyright infringement cases, leaving many Creators feeling disenfranchised.

Second, the complexity of the federal court system is often overwhelming for Creators. As stated in the Copyright Office’s 2013 Copyright Small Claims report, “Small copyright owners, who frequently lack experience with federal courts, often find federal litigation too difficult . . . and may be unable to navigate ‘the often complex procedural rules that govern federal litigation . . . .’” As highlighted in the report, even the Copyright Act’s registration requirement—the gateway requirement to launch a copyright infringement claim—can be problematic for Creators. It requires that a copyright owner successfully register, or receive a rejection of registration, from the Copyright Office before launching an infringement claim. Moreover, for a Creator to qualify for statutory damages and attorney’s fees, the Copyright Act requires the registration of the work within three months of its publication, or if unpublished, before the act of infringement. The failure to register within the required time is critical, as without the potential recovery of statutory damages (which can range up to $150,000 per work infringed), a Creator’s recovery would not likely overcome the legal fees incurred litigating the case.

As stated in the report, the result of this cost and complexity is that “federal court is effectively inaccessible to copyright owners seeking redress for claims of relatively low economic value, especially individual creators who are of limited resources.” Enter the CASE Act, which aims to create a less expensive and less procedurally complex alternative to the current system by creating the CCB within the Copyright Office. But how will the CCB operate?

How Will It Operate?

When the CCB becomes operational, a party will have the choice of commencing a copyright infringement proceeding in either federal court or the CCB. In contrast to federal court, and as will be discussed in more detail later, proceedings in the CCB are completely voluntary. Another way in which the CCB differs from federal court is in its authority over copyright infringement claims only where the total damages sought do not exceed $30,000. As to the CCB’s structure, it will be composed of three full-time Copyright Claims Officers. Each of the Officers must have seven years of legal experience; two of them must also have extensive copyright adjudication experience, while one must have extensive alternative dispute resolution experience. The Librarian of Congress will appoint these Officers to staggered six-year terms, and they will be supported by at least two full-time Copyright Claims Attorneys with at least three years of experience.

To make the CCB more accessible to Creators, the CCB’s proceedings aim to be more streamlined and user friendly than federal courts. A proceeding before the CCB begins when the claimant files a claim to the CCB that includes the proper filing fee and a statement of the material facts. In contrast to federal court, the CASE Act only requires a completed application for registration of the claimant’s work(s), rather than a certificate of registration or refusal of registration by the Copyright Office to commence the claim. After the claim is approved for compliance with the law and applicable regulations by a Copyright Claims Attorney, the claimant has 90 days to complete service. After receiving service, the respondent then has 60 days to opt out of the proceeding before it becomes “active”; however, in the “interests of justice,” the CCB can extend this window another 60 days.

The user-friendly goal of the CCB is best exhibited by the Act’s requirement that the proceedings take place solely “by means of written submissions, hearings, and conferences carried out through internet-based applications.” The only exception to this convenience is when there is “material” “physical or other nontestimonial evidence” that otherwise the CCB cannot review. Further, proceedings before the CCB will be more informal than in federal court. There is no requirement for representation by an attorney, there is limited discovery, and the formal rules of evidence do not apply. If the parties do not settle, at the close of the proceeding the CCB must make factual findings based on the preponderance of the evidence and issue a publicly available written determination.

With regard to remedies, the CCB has the authority to award either actual damages, and the respondent’s profits, or statutory damages. If the CCB awards statutory damages, it “may not make any finding that, or consider whether, the infringement was committed willfully,” and if timely registration has been made with the Copyright Office, the CCB can award up to $15,000 for each work infringed, though this is subject to a $30,000 maximum. In an important shift from existing law, however, even if the work was not timely registered, the CCB may still award up to $7,500 for each work infringed to a maximum total of $15,000 in a single proceeding.

Within 30 days of the issuance of the final determination of the CCB, a party can request reconsideration by the CCB. After giving the other parties an opportunity to respond, the CCB may either deny the request or amend the determination. If the CCB denies the request for reconsideration, a party then has 30 days to request the Register of Copyrights to review the CCB’s determination. After giving the other parties time to respond, the Register may deny or remand the proceeding to the CCB for reconsideration. Finally, within 90 days of the final determination, or the post-determination reconsideration, a party can appeal to a U.S. District Court. It is also in federal district court where a party can seek enforcement of the CCB’s determination if the other parties to the matter refuse to abide by its determination. For a visual representation of this process, the Copyright Alliance has put together an informative flowchart.

The CASE Act requires that three years after the CCB becomes operational the Register of Copyrights make assessment of its effectiveness. While whether the CASE Act will create the change hoped for by its supporters is yet to be seen, in my view, the attention given to address the challenges to Creators is critically important.

Categories
Copyright Copyright Theory

Professor Justin Hughes on “Restating Copyright Law’s Originality Requirement”

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP.

the word "copyright" typed on a typewriterBy Ryan Reynolds

In the 89 years following the publishing of the first Restatement of Law in 1932, the American Law Institute’s (ALI) Restatements have become an important tool for those in the legal community to better understand different bodies of law. Despite the success of the Restatements, however, their expansion into different areas of law has not always been received with open arms. Such is the case with the Restatement of Copyright. Since the project was revealed in 2015, many have voiced their skepticism of the project, questioning both its utility and whether its supporters truly want to restate the law or instead reform it. It is against this backdrop that Professor Justin Hughes’ forthcoming article, Restating Copyright Law’s Originality Requirement, finds itself situated.

In his forthcoming article, Prof. Hughes provides a detailed review of the draft Restatement’s treatment of one of the threshold requirements for copyright protection: the “originality” requirement. This requirement is established per §102(a) of the Copyright Act of 1976, which states that “[c]opyright protection subsists . . . in original works of authorship [emphasis added].” To determine whether a work is sufficiently original to be copyrightable, however, the Supreme Court created a two-pronged test in its seminal 1991 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. opinion. First, the work must be “independently created by the author,” which means that the author created the work without knowingly copying another’s work; second, the work must possess a “modicum of creativity”—which, by all accounts, is a very low bar.

Prof. Hughes concludes that, despite the inspiration for the project “by academics who felt the pace of reform of copyright law . . . has been too slow, [and] in the wrong direction,” the draft Restatement “stick[s] to a centrist, sometimes minimalist, narrative of Feist’s two-step framework.” This notwithstanding, Prof. Hughes notes that there are several “occasional missteps” and “a few points of genuine concern” with the current draft Restatement.

The Draft Restatement’s Treatment of The “Originality Requirement”

As noted by Prof. Hughes, the draft Restatement follows the general framework of Feist with § 5 “‘Originality: In General,’” stating in 5(b) that, “‘[f]or a work to be original, the work must be independently created by its author, as discussed in § 6, and must embody expression that is at least minimally creative, as discussed in § 7.’”

In his review, Prof. Hughes examines § 6 and § 7 respectively, beginning first with § 7’s treatment of Feist’s modicum of creativity requirement.

§ 7’s Treatment of the Modicum of Creativity Requirement

Describing it as the “true heart of the draft Restatement’s originality exercise,” Prof. Hughes commends the draft Restatement for what it does well while also criticizing it on several grounds. As for what he believes it does well, Prof. Hughes approves of the language shift from 7(a)’s, which focuses on “expression that is…minimally creative,” to 7(b) and 7(c)’s, which focuses on the author’s “choices.” While acknowledging that others have criticized the section for “this sleight of hand,” Prof. Hughes believes that this properly reflects the “shift from what courts are supposed to do to what courts actually do [emphasis in original].” As explained by Prof. Hughes, while Feist directs courts to look for a modicum of creativity, the Supreme Court’s 1903 Bleistein v. Donaldson Lithographing Co. decision prohibits judges from making “aesthetic judgments” on what is and is not creative. To resolve this tension, Prof. Hughes explains that courts look to the creative choices in the creation of a work to determine minimal creativity. Therefore, Prof. Hughes believes the draft Restatement’s focus on author’s “choices” accurately reflects the practice of courts; however, as it barely mentions Bleistein, it does not adequately explain to the reader what it is doing.

Further, Prof. Hughes criticizes § 7 for not following its treatment of author’s “choices” consistently where 7(c) is concerned. The relevant language of 7(c) says that “‘[t]he minimal-creativity requirement is not satisfied by choices . . . (such as . . . the tools used to produce the work . . . ).’” Prof. Hughes argues that this provision is incorrect, as “[t]he artist’s choice of which tools to use is part of the creative process. The sculptor’s choice of which chisel to pick up—width of blade, angle of blade, hardness of steel, etc.––may be an expressive choice.”

Another problem Prof. Hughes identifies with the draft Restatement of § 7 is that “Section 7(b) clearly seems intended to limit ‘selection, coordination, and arrangement’ as possible bases for original expression to ‘compilation’ works.” While the current draft of 7(b) states that, “In the case of a compilation [emphasis in original], choices regarding the selection, coordination, or arrangement of elements can satisfy the minimal creativity requirement even if those elements are not themselves original,” the 2018 version “did not have this limitation and was more open-ended.” As expressed by Prof. Hughes, “This intent to limit selection, coordination, and arrangement of bases for minimal creativity to the category of ‘compilation’ works is not an accurate reflection of case law [emphasis in original].”

Prof. Hughes also criticizes the draft Restatement both for what it chooses to say and chooses not to say about creativity. As to the former, while comments to § 7 do not provide a definitive definition of what is or is not original, they do provide a list outlining what minimal creativity requires. While to Prof. Hughes this list is helpful, it is also imperfect and raises concerns. One concern he highlights is its potential to raise the minimal-creativity bar, thereby narrowing copyright’s protections. To this point, Prof. Hughes highlights that, in the draft Restatement’s list, it provides that creativity must be “‘making non-obvious choices from more than a few options.’” As Prof. Hughes breaks down, “[t]hat appellate court dictum is directly contradictory to the Supreme Court’s statement in Feist . . . that the minimal-creativity requirement . . . can be met by ‘some creative spark, ‘no matter how crude, humble, or obvious’’[emphasis in original].”

As to what the draft Restatement chooses not to say about creativity, Prof. Hughes first believes that, to improve, the draft Restatement should “includ[e] . . . a discussion of how choices that manifest individual personality,” such as the decisions of photographers on how they take pictures, are “protectable original expression.” To this point, Prof. Hughes believes that “the most serious shortcoming” of § 7 is the Reporters’ decision not to address Bleistein—which, in the cited words of Prof. Barton Beebe, “‘directly connected ‘originality’ with personal expression.’” Second, Prof. Hughes believes that § 7 should acknowledge “‘intellectual’ choices” as “part of the minimal-creativity equation.”

§ 6’s Treatment of The Independent Creation Requirement

Moving onto his review of § 6, Prof. Hughes first points to its language: “A work meets the independent-creation criterion for originality if the author has contributed some expression to the work without copying that expression from any preexisting work.” While Prof. Hughes believes that the “formulation is ok,” he quickly points out issues he sees with the section’s comments and Reporters’ Notes. First, Prof. Hughes notes that Comment a’s statement “that ‘[f]or expression to be independently created, it must come from the mind of the author’ . . . arguably conflates the two Feist prongs”—a conflation he notes Comment b also likely commits. As Prof. Hughes explains, “the independent production requirement is that the expression be made or brought into the world by a person who had not experienced the same expression previously [emphasis in original],” and therefore “[i]t is not necessary that it ‘come from the mind of the author.’” As Prof. Hughes illustrates, “If a person throws a set of dice one hundred times and writes down the resulting dice totals from each roll on a list, that list was ‘independently-created’ under Feist.”

Prof. Hughes is also critical of the discussion of “novelty” in Comment b, which says that “‘the expression need not be novel or unique.’” While he believes the Reporters’ Notes make an important point, he sees the use of the word “novelty” as simply “too loaded with patent law baggage.” As he explains, the independent-creation standard for Copyright is different from patent law’s “novelty” standard, as “[c]opyright’s independent-creation requirement does not mean that the thing cannot already exist in the world.” Therefore, as there may be confusion in using the word “novelty,” Prof. Hughes recommends removing it altogether.

Lastly, Prof. Hughes also questions the amount of attention the Comments and Reporters’ Notes to § 6 dedicate to nonhuman authorship. After providing an overview of the current limited case law surrounding this issue, he concludes that, while “[t]hese issues are fun conjecture for academics, . . . [they] are so rarefied as to wonder why the draft Restatement discusses them at all.”

Categories
Copyright

Artist Roundtable Presented by the Mason Sports & Entertainment Law Association and the Arts & Entertainment Advocacy Clinic

The following post comes from Austin Shaffer, a 2L at Scalia Law and a Research Assistant at CPIP.

the word "copyright" typed on a typewriterBy Austin Shaffer

On April 6th, the Mason Sports & Entertainment Law Association, in conjunction with the Arts & Entertainment Advocacy Clinic, hosted its Artist Roundtable event. Moderated by Professor Sandra Aistars of Scalia Law, the panel featured musician and producer David Lowery, filmmaker and photographer Stacey Marbrey, and author and director David Newhoff. To kick off the event, Prof. Aistars invited each of the panelists to introduce themselves and highlight any ongoing projects.

About the Panelists

Stacey Marbrey is an award-winning film director, producer, and internationally recognized editorial photographer and has programmed numerous film festivals. Previously, she acted as Program Director for an international film exchange under the auspices of the U.S. Department of State in concert with both the President’s Committee on the Arts and Humanities and the American Film Institute.

David Lowery is an American guitarist, vocalist, songwriter, mathematician, and activist. He is the founder of alternative rock band Camper Van Beethoven and co-founder of the traditional rock band Cracker. Throughout his career in the music industry, Mr. Lowery has worked in nearly every role imaginable, from both the business and music perspectives. Recently, he worked on a small project with limited online CD sales to experiment with a new revenue stream and business model. Mr. Lowery frequently posts at the popular blog “The Trichordist.”

David Newhoff is a writer and copyright advocate. He recently finished his first book, Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright. He lives in New York’s Hudson River Valley, where he is currently working on his next book. Mr. Newhoff also writes the popular copyright blog “The Illusion of More.”

How do creative roles intersect with legal issues? What can lawyers do a better job of understanding when engaging with creators?

Mr. Lowery highlighted the importance of the intersection between the arts and legal roles. Unfortunately, he noted, there is a stigma in the artistic community regarding the use of legal action. He commented that, while you should generally attempt to resolve disputes internally, you cannot be afraid to use the legal system to enforce your rights. Even the legally savvy artists can misjudge the scope of the rights to which they are entitled. Mr. Lowery emphasized the need to provide artists with an “intervention”: register your works with the Copyright Office, guarantee your revenue streams with the Mechanical Licensing Collective, and enforce your rights.

On a similar note, Mr. Newhoff echoed the notion that some artists do not fully appreciate the scope of their rights and––perhaps more importantly—their obligations. It is not uncommon, he explained, for creators to assume that their publisher will handle all the legal responsibilities that go into creating a work (i.e., clearing photographs, obtaining permission to publish interviews, etc.). That assumption, however, leaves the author subject to potential liability for copyright infringement. Rather than taking that risk, Mr. Newhoff argued, creators should be proactive in fulfilling their legal obligations. 

Commenting on Mr. Newhoff’s observations, Ms. Marbrey remarked that, in many cases, creators wear many different hats and serve in various roles throughout the course of creating a work. Particularly in the film industry, it can be difficult for creators to keep their various duties and obligations separated and organized. Ms. Marbrey argued that this is one problem that lawyers can help to solve. By taking the time to understand the numerous roles in which a single creator may serve, lawyers can help to ensure that creators are getting maximum value out of their efforts.

The Stigma Against Contracts

The panelists each made unique observations on the use of contracts and how their respective industries tend to perceive them. Prof. Aistars pointed out a concerning trend: creators tend to have a negative view towards contracts and consequently refrain from using them. She commented that, in general, no one wants to be the person to involve lawyers in otherwise “friendly deals.”

The panelists shared stories from their careers that demonstrated this stigma. Ms. Marbrey, for example, worked on a collaborative project involving multiple SAG actors. The parties declined to set up a contractual framework to properly address various SAG-AFTRA requirements for actors. Consequently, the production was later paused to renegotiate deals with the actors after the film was already completed. Due to this misstep, the release of the project was delayed.

The panelists concluded that, while it may force some uncomfortable conversations at the onset of a project, creators should become more liberal with their use of contracts. Doing so allows for a mutual understanding between all parties before any time is invested into the creative process.

Current Trends to Watch in Copyright Law

This portion of the discussion offered a unique insight into the development of copyright law from creators’ perspectives. While the conversation was wide-ranging, there were several common topics that the panelists found especially significant.

The panelists came to a consensus that the general agenda of weakening copyright law could cause devastating effects to the creative community. Mr. Newhoff pointed specifically to the ongoing work being done by the American Law Institute (ALI) on a potential Restatement of Copyright. He argued that broadly speaking, the academic world tends to take an anti-copyright law stance. The panelists agreed that this should generate concern from the creative community and that individual creators should strive to have their voices heard as this project continues.

In general, creators tend to have difficulties understanding the scope of fair use. Especially given the recent Supreme Court decision in Google v. Oracle, there is an element of amorphousness to the fair use doctrine. The panelists concurred that, without legal assistance, creators will likely continue to struggle in determining what constitutes fair use and what requires a license to use.

The event concluded with a discussion on how creators can adapt to and update with the digital age. As a threshold matter, Mr. Newhoff argued that it is hard to fit 20th-century copyright doctrine into the 21st-century landscape. Moving forward, some of the copyright laws may need to be updated (or at least monitored) to better facilitate the production of creative works. Optimistically, Ms. Marbrey noted that the “streaming takeover” is exciting for filmmakers. Although streaming can pose tricky and previously unconsidered issues surrounding copyright law, it offers a new way for creators to showcase their works and opens the door to innovative revenue streams.

Categories
Healthcare Patents

WTO IP Waiver Too Simplistic: Global Vaccine Tech-Transfer Needs Other Strategies

a scientist looking through a microscopeBy Yogesh Pai

Since October 2020, India and South Africa, joined by two-thirds of the WTO Members (African Group, LDCs and most of developing world) have been actively pursuing other developed country Members to agree to their request to waive global intellectual property (IP) rules. The waiver asserts that by suspending IP protection for COVID-19 technologies, countries will be able to quickly augment production and foster equitable access for COVID-19 related products.

The push for the IP waiver proposal rests on an often simplistic textbook assumption that IP controls exercised through legal rights allow IP owning firms exclusive control on production by reducing output (by restricting competitive copycat entry) and thus increasing prices. Of course, this is something no country wants during a pandemic where equitable access is paramount.

However, truth be told, the IP waiver proposal, even if passed by approval of three-fourths of current WTO Members (a minimum requirement under WTO Rules) or with a consensus, will not enable India or any other country (even with decent production capabilities) to quickly access complex technologies and augment production, particularly in the context of COVID-19 vaccines.

The critical issue surrounding access to COVID-19 vaccine technologies involves an active technology licensing component, which the waiver/suspension of IP laws cannot achieve (e.g. by suspending patents or trade secret protection).

Most complex technologies such as vaccines and other biological products contain two major knowledge components. One component is the knowledge that can be copied by competitors and hence patented to legally prevent copying for at least 20 years in India. Another component involves any undisclosed information such as a trade secret or know-how, including hard tacit knowledge of manufacturing/quality control measures for production and clinical data required for regulatory clearances.

IP waiver simply can’t achieve access to tacit knowledge components which are in the exclusive possession of a firm in the form of trade secrets or any other undisclosed information. Any IP lawyer with an understanding of IP intensive industries would confirm that trade secrets do not require any ‘exclusivity’ type of legal protection (e.g. like patents). Trade secret laws provide defensive protection to a firm that already has exclusive possession of some undisclosed information against industrial espionage, breach of confidence/contracts by its employees or by connected parties who benefit from such misappropriation. Of course, unconnected parties (i.e. competitors) are always free to come out with their own products/processes through capital intensive and time consuming (months/years) reverse-engineering or independent innovation, which the law on trade secrets does not prohibit.

So even if the WTO IP waiver will allow countries like India to suspend legal protection for trade secrets/undisclosed information, it means nothing in the real-world unless the law  (and often a draconian criminal measure) is used against a firm and its employees physically located in its territory to engage in forced technology transfer (FTT). Such FTT requirements have never worked in practice without other social and economic costs. India has already had a taste of it in its unsuccessful bid to get Coca-Cola to reveal its know-how under foreign exchange laws in the late 1970s. It led to Coke’s exit from India and return in the post-liberalisation era in the early 1990s.

Realising such complexities and the potential futility of blunt legal instruments early on, the Serum Institute of India (SII) actively collaborated with AstraZeneca/Oxford for obtaining a technology licence involving a reported fee of Rs. 75/- per jab. This allowed SII access to AstraZeneca’s tacit knowledge (trade secrets/other undisclosed information) and clinical trial data to engage in quality-controlled production. Scaling-up is a different challenge altogether as it requires both time and investment in heavily quality-controlled production facilities.

Similarly, India’s Council of Scientific & Industrial Research (CSIR) – Centre for Cellular and Molecular Biology (CCMB), which already has certain expertise in mRNA technologies, is pursuing Moderna to engage in vaccine technology licensing. Although Moderna has allowed free access to its mRNA patents for COVID-19 vaccine production, the crux lies in active technology licensing.

In fact, even in case of an indigenously developed vaccine technology by Bharat Biotech with an early-stage lab support from the publicly-funded Indian Council of Medical Research (ICMR) – National Institute of Virology (NIV), the Department of Biotechnology had to recently nudge Bharat Biotech to engage in talks with Panacea Biotech (the only other company in India which is currently equipped to produce Covaxin) to scale-up production.

So, a WTO IP Waiver to suspend IP obligations domestically will not help unless India engages in FTT – a recipe for complete disaster, particularly when we have finally decided to open-up to more foreign players. The Government of India must not waste its valuable energy in pursuing the waiver proposal in trying to look for solutions that are far removed from the real-world complexities and constraints posed by economics of vaccine technologies and production, and an equally complex IP ecosystem in the context of global tech-transfers. Where blunt legal instruments don’t work, using track-1 and track-2 diplomacy to place moral coercion on western governments to nudge firms to actively engage in technology licensing may still work wonders.

Allowing manufacturers to strike early deals with tech players to facilitate risk-sharing and exploration of synergies driven by a predictable and transparent entry-enabled regulatory environment is a pre-requisite for sustainable vaccine production. Securing cheap upfront volume discounts for state-sponsored distribution and allowing private players to cross-subsidise through differential pricing in private sales will help in meeting the demand. This will facilitate scaling-up of production and pave the way towards healthy competition by driving down vaccine prices in order to attain vaccine equity.

Dr. Yogesh Pai is an assistant professor and the DPIIT, Ministry of Commerce and Industry IPR Chair at National Law University Delhi. He has served as a legal member of the Ministry of Health and Family Welfare’s Committee on Invoking Provisions of Compulsory Licensing under the Patents Act, 1970 in the Context of Affordable Healthcare (2013). Views are personal.

This piece first appeared on April 28, 2021, in the Express Pharma edition of the Indian Express.

Categories
WIPO

CPIP Celebrates World Intellectual Property Day 2021

lightbulbs drawn on a chalkboardToday marks the 21st annual World Intellectual Property Day. The event is held each year on the 26th of April to commemorate the day the WIPO Convention, which established the World Intellectual Property Organization (WIPO), entered into force in 1970. The theme of this year’s World IP Day is “IP & SMEs: Taking Your Ideas to Market,” and events are being held around the world to highlight the critical role of small- and medium-sized enterprises (SMEs) to bringing creative innovations to the marketplace. As President Biden noted in his World IP Day proclamation, small businesses “make up 90 percent of businesses in the United States, employ nearly half of America’s private sector workers, and create two-thirds of new jobs, and bring opportunity to every corner of our Nation.”

CPIP Executive Director Sean O’Connor spoke about the importance of IP for med tech SMEs at a World IP Day event organized by the U.S. Embassy in Tokyo, Japan. The event, entitled “Patents to Patients: The Role of Intellectual Property in Innovative Healthcare,” brought together leading experts to discuss how Japanese SMEs can take advantage of intellectual property rights. Traditionally, Japanese SMEs have often foregone IP protection because of the expense and uncertainty about its value. But as this sector increasingly relies on venture capital and commercialization based on licensing throughout the value chain, secure IP rights to define and convey the developing innovation are a necessity.

There are several events in the Washington, D.C., area this week that will underscore the success stories of SMEs and discuss the IP resources that are available to help them with their IP needs. The U.S. Patent and Trademark Office, along with several other organizations, is hosting an event today to discuss the role of IP in supporting the creativity and innovation of small businesses. The U.S. Copyright Office is likewise holding an event today to discuss the importance of SMEs in copyright, the economy, and our culture. Also today, the Licensing Executives Society (LES) has organized an event to celebrate the ingenuity and creativity embodied in SMEs, and the Intellectual Property Owners (IPO) Education Foundation is holding an event to discuss different approaches to bring ideas to the market. The Copyright Alliance is hosting two panel presentations later this week on how IP and advocacy can help creative small businesses to grow and succeed.

We are thrilled to see these and many other events celebrate the power of intellectual property to help small businesses succeed in the global economy.

Categories
Copyright Fair Use Supreme Court

Recap of the Supreme Court’s Google v. Oracle Opinion

a gavel lying on a desk in front of booksThe following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

By Liz Velander

The Supreme Court finally reached a determination in the decade-long dispute between two of the biggest technology companies in the world, Google and Oracle. Many have long-awaited the Court’s decision in this case, as it had the potential to provide market certainty in the software industry through its copyrightability analysis. The Court ultimately declines to give that certainty by bypassing the copyrightability issue and choosing to base its holding on a fact-intensive fair use analysis. The Court does this so as to “not answer more than is necessary to resolve the parties’ dispute,” “given the rapidly changing technological, economic, and business-related circumstances.” It emphasizes that its holding is narrow, only applies to declaring code, and does not modify its prior cases on fair use. However, by framing its opinion this way, the Court provides new arguments for infringers to use in a fair use defense in the software sphere and beyond. For this reason, the Court’s decision is not as narrow as it sets out to be. It may lead to lower court decisions that broaden the fair use doctrine and limit the copyright protection given to software.

The Court’s decision broadens fair use by using the doctrine to loosen copyright protection for certain types of code, allowing for a more expansive reading of a “transformative use,” and giving great weight to the public benefit of the use. Before it engages in its fair use analysis, the Court states that “fair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here.” Fair use “can distinguish between expressive and functional features of computer code where those features are mixed.” It can also “focus on the legitimate need to provide incentives to produce copyrighted material while examining the extent to which yet further protection creates unrelated or illegitimate harms in other markets or to the development of other products.” The Court describes fair use as a “context-based check that can help to keep a copyright monopoly within its lawful bounds.”

To highlight the ability of fair use to accomplish these goals, the Court begins its analysis with the second statutory factor, “the nature of the copyrighted work.” The Court uses this factor to discuss issues that would have come up if it analyzed the copyrightability of Oracle’s material, such as the applicability of the merger doctrine. It then moves to “the purpose and character of the use,” where it adopts an expansive reading of what constitutes a “transformative use.” The biggest impact of the Court’s fair use analysis, however, will likely come from the great weight it gives to the public benefit of the use under the market effect factor. By using fair use to determine “the lawful scope of a computer program copyright,” the Court’s holding may inadvertently broaden the fair use doctrine.

The Nature of the Copyrighted Work

The Court begins its analysis with describing “the nature of the copyrighted work.” The copyright at issue protects a portion of Oracle’s Java SE platform, called declaring code. Java SE has three essential parts: (1) implementing code, (2) method calls, and (3) declaring code. Implementing code tells the computer how to execute the particular task the programmer asks it to perform. Method calls are commands that help the computer carry out the task by choosing the correct programs written in implementing code. The declaring code is how the method call actually locates and invokes the particular implementing code that it needs to instruct the computer how to carry out a particular task.

For each task, the specific method call entered by the programmer matches up with a specific declaring code inside Java SE. That declaring code provides both the name for each task and organizes them within Java SE’s library. In this sense, the declaring code and the method call form a link, allowing the programmer to draw upon the thousands of prewritten tasks, written in implementing code. Without that declaring code, the method calls entered by the programmer would not call up the implementing code.

In this case, Google did not copy the implementing code from Oracle’s Java SE platform; it copied the declaring code. The Court draws a “critical line” between the uncopied implementing code and the copied declaring code under this factor. On one hand is the innovative implementing code and on the other, user-centered declaring code. The Court explains that the writing of implementing code requires balancing considerations as to how quickly a computer can execute a task or the likely size of a computer memory. The Court says that this balancing is “the very creativity that was needed to develop the Android software for use not in laptops or desktops but in the very different context of smartphones.”

Declaring code, the Court says, embodies a different kind of “creativity” because it is user facing. It must be designed and organized in a way that is intuitive and understandable to developers so they can invoke it. As part of a user interface, declaring code differs from most computer code because “its use is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android’s implementing code).” For these reasons, the Court concludes that “the declaring code is, if copyrightable at all, further than are most computer programs (such as the implementing code) from the core of copyright.” Therefore, the Court finds that the second factor, “nature of the copyrighted work,” points in the direction of fair use.

The Purpose and Character of the Use

The Court explains that the inquiry into “the purpose and character” of the use turns in a large measure on whether the copying at issue was “transformative,” that is, whether it “adds something new, with a further purpose or different character.” The Court finds that, even though Google copied Oracle’s declaring code verbatim, its use was “transformative” because it furthered the development of software programs.

The Court explains that what Google did is known as “‘reimplementation,’ defined as the ‘building of a system . . . that repurposes the same words and syntaxes’ of an existing system.” Google “reimplemented” Oracle’s declaring code to allow programmers expert in the Java programming language to use the “task calling” system that they had already learned. By using the same declaring code, programmers using the Android platform can rely on the method calls that they are already familiar with to call up particular tasks. Then Google’s own implementing code carries out those tasks.

The Court concludes that Google’s copying was a transformative use. “Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective.” Such use is “consistent with the creative ‘progress’ that is the basic constitutional objective of copyright itself.” Therefore, the purpose and character of Google’s copying was transformative to the point at which this factor also weighs in favor of fair use.

The Amount and Substantiality of the Portion Used

 The Court says that the question here is whether the over 11,000 lines of code Google copied should be viewed in isolation or as one part of a considerably greater whole. On one hand, those lines of code amount to virtually all the declaring code needed to call up hundreds of different tasks. On the other hand, if one considers the entire set of software material in the Java SE platform, the quantitative amount copied was small (only 0.4 percent).

The Court decides to view Google’s copying as one part of a greater whole because the amount of copying was “tethered to a valid, and transformative, purpose.” It explains that Google did not copy the lines because of their creativity but because programmers had already learned to work with the Java SE platform, and it would have been difficult to attract programmers to build its Android smartphone system without them. It describes the portion of the declaring code used at “the key that [Google] needed to unlock the programmers’ creative energies. And it needed those energies to create and improve its own innovative Android systems.” For these reasons, the Court holds that this factor weighs in favor of fair use.

Market Effects

The fourth statutory factor focuses upon the “effect” of the copying in the “market for or value of the copyrighted work.” The Court explains that this requires a court to consider the copyright owner’s potential loss of revenue, the source of the loss, and the public benefits the copying will likely produce. As to the likely amount of loss, the Court states that Oracle was ill-positioned to enter the smartphone market, so the jury could have found that Android did not harm the actual or potential markets for Java SE. As to the source of the loss, the Court finds Android’s profitability has much to do with third parties’ (programmers’) investment in the Java programs and less to do with Oracle’s investment in creating the Java SE platform. It says that the Copyright Act does not protect third parties’ investment in learning how to operate a created work.

Finally, given programmers’ investments in learning the Java SE platform, to allow enforcement of Oracle’s copyright here would risk harm to the public by operating as a lock on innovation. “The result could well prove highly profitable to Oracle (or other firms holding a copyright in computer interfaces). But those profits could well flow from creative improvements, new applications, and new uses developed by users who have learned to work with that interface. To that extent, the lock would interfere with, not further, copyright’s basic creativity objectives.” The Court concludes that the uncertain nature of Oracle’s “ability to compete in Android’s market place, the sources of its lost revenue, and the risk of creativity-related harms to the public, when taken together, convince that this fourth factor—market effects—also weighs in favor of fair use.”

The Court ends its opinion by noting that “the fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technical world.” While that is certainly true, the Court made its work more difficult by basing its opinion in fair use instead of analyzing the copyrightability of Oracle’s code in the first place.

Categories
Copyright Legislation

Professors Balganesh and Menell on “The Curious Case of the Restatement of Copyright”

The following post comes from Ryan Reynolds, a 3L at Scalia Law and Research Assistant at CPIP.

a gavel lying on a desk in front of booksBy Ryan Reynolds

In 2015, the American Law Institute (ALI) made the announcement that it would restate an area of law that is dominated by a detailed statute—the Restatement of Copyright. ALI’s Restatements have played an important role in the development of the law, with judges, lawmakers, and law students referring to them as important tools in understanding different bodies of law. In the nearly one hundred years since ALI’s formation, however, its Restatement projects have historically eschewed legal fields dominated by statutes, instead focusing on common law topics. Therefore, when ALI announced its plan to create a Restatement of Copyright, there were many who were skeptical of the project.

It is in this context that Professors Shyamkrishna Balganesh and Peter Menell provide insight in their forthcoming article in the Columbia Journal of Law & the Arts, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright. While Profs. Balganesh and Menell support a Restatement of Copyright, they argue against ALI’s application of the traditional Restatement format to an area of law dominated by a detailed federal statute. They argue that such an application ignores the analytical mismatch between the traditional Restatement format and statutory domains that will create more confusion than clarity. To resolve this mismatch, Profs. Balganesh and Menell argue for several modest changes that would allow the project to serve as a template for future statutory Restatements.

Historical Origins of the “Mismatch”

Looking to the origins of ALI, Profs. Balganesh and Menell illustrate that, from the beginning, it purposely avoided areas of law principally governed by statutes. ALI’s conception of its core function then, as now, was to resolve the uncertainty and complexity of American law—which, at the time of ALI’s formation, was derived from judge-made law that lacked general agreements on legal principles. Therefore, ALI provided guidance to judges and those involved in the legal field with the first Restatements of the law. These Restatements distilled black-letter rules of law from the disparate court decisions across the country and were seen as clear statements of the law.

It is for this reason that, soon after ALI approved a Restatement of Business Associations, fear arose among its membership that it was a subject too steeped in statutory provisions to fit the Restatement model. To address this fear, then ALI Director William Draper Lewis prepared a report outlining a framework to adapt Restatements to statutorily dominated legal fields. At its core, this framework advocated for placing the statutory provisions of subjects governed by uniform statutory law front and center. To Mr. Lewis, the primary value of these Restatements would not consist in distilling black-letter rules of law but would instead be the clarification of interpretive principles, providing the relevant judicial and executive efforts surrounding the statutory text.

Despite Mr. Lewis’ efforts, however, ALI ultimately abandoned the project and never revisited the framework of Lewis’ report. Following this affair, ALI’s Restatements avoided direct engagement with fields dominated by statutory law, instead using model codes as an alternative. That changed in 2015 when ALI announced the Restatement of Copyright project.

The “Mismatch” in the Current Restatement Initiative

As Advisors on the Restatement of Copyright project, Profs. Balganesh and Menell take time to outline their experience and criticism of the project’s use of the traditional Restatement model to copyright law. Despite ALI initially indicating that the project would focus on common law features of the Copyright Act, the first circulated draft indicated that its scope had expanded to include federal statutory provisions. To create its distilled black-letter rules of law, Profs. Balganesh and Menell note that the draft paraphrased, condensed, and reworded the statutory provisions of the Copyright Act. These changes were such that the “lack of attention to the text, legislative history, and administrative context of copyright law . . . would not aid busy judges in identifying pertinent sources for interpreting statutory provisions.”

To illustrate their criticism of the mismatch, Profs. Balganesh and Menell provide an in-depth case study of ALI’s efforts to restate the Copyright Act’s distribution right. As they explain, the interpretation of the distribution right has been subject to significant interpretive controversy. With the rise of peer-to-peer file sharing in the early 2000s, the distribution right was the subject of massive litigation. While some courts interpreted a violation of the distribution right narrowly to require proof that sound recordings placed in a share folder were actually downloaded by a third party, other courts read it broadly so that merely “making available” a sound recording through a peer-to-peer network could constitute a violation. As argued by Profs. Balganesh and Menell, the legislative history of the Copyright Act demonstrates Congress’ intention for a broad reading of the distribution right. This legislative history was not considered by a court until the Tenth Circuit’s opinion in Diversy v. Schmidly, where the court held that the distribution right included liability for “making available” copyrighted works to the public. This same interpretation was also reached by the Copyright Office in a 2016 report prepared at the request of the House Subcommittee on Courts, Intellectual Property & the Internet.

At its core, Profs. Balganesh and Menell criticize ALI’s draft of the distribution right for not presenting faithfully all the pertinent interpretive sources and instead improperly stepping into the role of a judge by making an interpretive decision itself. Despite it’s claiming not to do so, Profs. Balganesh and Menell argue that the draft intentionally put aside a meaningful discussion of the legislative history to adopt an interpretation of the distribution right that rejected the “making available” approach to liability. Further, in its formulation of its black-letter law, the draft relied solely upon court decisions interpreting the statute prior to the Diversy decision, where the legislative history was not understood, and at no point presented the language of the statute itself. Despite their raising of these concerns to ALI, Profs. Balganesh and Menell state that ALI only “double[d] down,” committing to its textualist interpretation while “purporting not to take a position.”

Proposed Remedies for the “Mismatch”

To remedy the mismatch in the current project, Profs. Balganesh and Menell first propose that the Restatement should modify its perspective. In the traditional model, Restatements purport to speak from the perspective of an “excellent common-law judge.” When it is extended to statutory areas of law, however, Profs. Balganesh and Menell argue that this perspective is inappropriate. As statutory interpretation relies on the discretion of judges, a black-letter rule prescribing a singular interpretation of the statutory language steps beyond the role of a Restatement to only clarify the law. Profs. Balganesh and Menell propose that the Restatement should instead act to aid judges in exercising their discretion by providing them with a forthright explication of the materials that inform statutory interpretation, such as an overview of the relevant legislative history or interpretive approaches by other courts.

Second, Profs. Balganesh and Menell propose an update to the Restatement template. Keeping with the idea from Mr. Lewis’ report, Profs. Balganesh and Menell propose that the traditional black-letter law section of the Restatement be replaced with the actual and complete text of the statutory provisions. They then propose that the Restatement lay out sources of interpretation available to a judge in the context of the statute. Since interpretation begins with the text of the statute, placing the text front and center, then followed by relevant interpretive tools, respects the role of a judge while ultimately aiding in the interpretive exercise. Last, Profs. Balganesh and Menell propose reworking the preamble to the Restatement of Copyright as an objective primer to the history surrounding the Copyright Act’s formation. Due to the complex and unique history surrounding the Act’s evolution, Profs. Balganesh and Menell argue that such a preamble would allow an interpreter from the outset to see some of the relevant tools and sources that could be used in interpreting its provisions.

Categories
Communications Progress Reports

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

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

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

CPIP Hosted & Co-Hosted Events

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

News & Speaking Engagements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mark Schultz (CPIP Senior Scholar; Goodyear Tire & Rubber Company Chair in Intellectual Property Law, University of Akron School of Law; Director, Center for Intellectual Property Law and Technology)

Ted Sichelman (CPIP Senior Scholar; Professor of Law, University of San Diego School of Law; Director, Center for Intellectual Property Law & Markets; Founder & Director, Center for Computation, Mathematics, and the Law; Founder & Director, Technology Entrepreneurship and Intellectual Property Clinic)

Scholarship & Other Writings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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