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

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

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

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

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

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

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

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

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

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

News & Speaking Engagements

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

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

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

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

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

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

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

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

Sandra Aistars (C-IP2 Senior Fellow for Copyright Research and Policy & Senior Scholar; Founding Director, Arts & Entertainment Advocacy Clinic; Clinical Professor of Law, George Mason University Antonin Scalia Law School)

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

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

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

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

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

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

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

John F. Duffy (C-IP2 Senior Scholar; Samuel H. McCoy II Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law)

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

Jon Garon (C-IP2 Senior Scholar; Professor of Law and Director of the Intellectual Property, Cybersecurity, and Technology Law program, Nova Southeastern University Shepard Broad College of Law)

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

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

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

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

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

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

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

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

Joshua Kresh (C-IP2 Managing Director)

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

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

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

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

    • Joined C-IP2 as a Senior Scholar in September

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

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

Emily Michiko Morris (C-IP2 Senior for Life Sciences and Scholar; C-IP2 2021-2022 Edison Fellow; David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, University of Akron School of Law)

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

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

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

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

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

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

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

Mark F. Schultz (C-IP2 Senior Scholar; Goodyear Tire & Rubber Company Chair in Intellectual Property Law, University of Akron School of Law; Director, Center for Intellectual Property Law and Technology)

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

Ted Sichelman (C-IP2 Senior Scholar; Professor of Law, University of San Diego School of Law; Director, Center for Intellectual Property Law & Markets; Founder & Director, Center for Computation, Mathematics, and the Law; Founder & Director, Technology Entrepreneurship and Intellectual Property Clinic)

Scholarship & Other Writings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Categories
Communications

C-IP2 2021 Fall Progress Report (June-August 2021)

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

Now that fall has officially begun, C-IP2 is wrapping up the summer with our Fall Progress Report for 2021 covering activities June through August. This is also our first progress report under our new name, since we rebranded on July 1 as the Center for Intellectual Property x Innovation Policy (C-IP2, also: C-IP2), formerly the Center for the Protection of Intellectual Property (CPIP).

    • Some of this summer’s highlights include the fourth iteration of the WIPO U.S. Summer School on Intellectual Property and a panel discussion on Vaccines, Intellectual Property, and Global Equity, co-hosted with the Lemelson Center for the Study of Invention and Innovation at the Smithsonian National Museum of American History. We are proud to organize and host the only WIPO U.S. summer school in the world. Both events were hosted virtually for a second year running, but we look forward to moving them in person again next year.
    • We also had some exciting changes in staff and affiliates. Joshua Kresh was promoted to Managing Director in August and we expanded our affiliates to include our first Jurist in Residence, Chief Judge Susan Braden, U.S. Court of Federal Claims (ret.), and Practitioners in Residence Terrica Carrington, Copyright Alliance, and David Grossman, Senior Director of Technology Transfer and Industry Collaboration, George Mason University, as well as new affiliate scholars Professors John F. Duffy, University of Virginia School of Law; Tabrez Ebrahim, California Western School of Law; Camilla A. Hrdy, University of Akron School of Law; Dmitry Karshtedt, The George Washington University Law School; F. Scott Kieff, The George Washington University Law School; Emily Michiko Morris, University of Akron School of Law; Christopher M. Newman, George Mason University Antonin Scalia Law School; and Yogesh Pai, National Law University Delhi.

Keep an eye on our website or sign up for our News & Events mailing list to learn about upcoming fall events. Hope to see you at upcoming event, such as our Annual Conference on AI & IP in October featuring a fireside chat with Jaron Lanier and Grimes!

C-IP2 Hosted & Co-Hosted Events

C-IP2 proudly partnered with the World Intellectual Property Organization (WIPO) to host the fourth iteration of the only WIPO-U.S. Summer School on Intellectual Property in the world from June 1-12. This two-week summer course was held online due to COVID, but that format enabled a wider range of participants to attend. While we hope to return to in person next year to take advantage of our location in Arlington, Virginia—just minutes from Washington, D.C., one of the world’s key centers of IP law and policymaking—we may include a hybrid component to facilitate access among participants who cannot travel to the U.S. Among the instructors this year were several C-IP2 directors, scholars, and affiliates: Sandra Aistars, Jonathan Barnett, Chief Judge Susan G. Braden (ret.), Christopher Holman, Joshua Kresh, Hina Mehta, Christopher Newman, Sean O’Connor, Kristen Osenga, Eric Priest, and Mark Schultz. You can read more about the event here.

As part of the Summer School, C-IP2 co-hosted a panel on “Vaccines, Intellectual Property, and Global Equity” with the Lemelson Center for the Study of Invention and Innovation at the Smithsonian, following a presentation on the history of vaccines by Lemelson Director Arthur Daemmrich. Moderated by C-IP2 Faculty Director Professor Sean O’Connor, the panel featured speakers Eric Aaronson (Senior Vice President and Chief Counsel, Intellectual Property, Pfizer Inc.), Dan Laster (Director, Washington State COVID-19 Vaccine Action Command and Coordination System (VACCS) Center), and Dr. Arti K. Rai (Elvin R. Latty Professor of Law and co-Director, Duke Law Center for Innovation Policy). A recording of the panel is available here.

News & Speaking Engagements

On June 17, George Mason University’s President, Dr. Gregory Washington, took part in a fireside chat about technology and innovation at Mason’s Arlington campus, including the new Institution for InnovAtion (IDIA). Later, on July 30, Virginia Business published an article, “George Mason aims to produce nearly 16,000 high-tech workers,” focusing on the University’s Arlington Campus, plans for its new building, and Mason’s Institute for Digital InnovAtion (IDIA) and School of Computing. Professor Sean O’Connor’s Innovation Law Clinic and Professor Sandra Aistars’ Arts & Entertainment Advocacy Clinic will be housed in the IDIA space and working amid these exciting developments. Professor O’Connor serves on the Advisory Council for IDIA and on the Planning Committee for the Arlington Innovation Pilot project which includes the new building going up on the Arlington Campus. He works closely with Mason Associate Dean for Strategic Initiatives and Community Engagement Liza Wilson Durant and Associate Vice President of Innovation and Economic Development Paula Sorrell, both of whom are cited in July article.

In June, C-IP2 welcomed Professors Tabrez Ebrahim and Emily Michiko Morris as Scholars.

On July 1, our center––formerly the Center for the Protection of Intellectual Property (CPIP)––announced that we would be changing our name to the Center for Intellectual Property x Innovation Property (C-IP2, also: C-IP2; pronounced “sip-squared” or “Center for Intellectual Property by Innovation Policy”). C-IP2 produces research, education, and service at the intersection of IP and innovation policy to better understand and shape the means of innovation as a positive force for good. We do so by promoting a diverse set of perspectives and voices to present a fuller picture than that of the dominant legal academic literature on the role of IP and other legal mechanisms to transform great ideas into useful or aesthetic artifacts and activities. Find us on the web at cip2.gmu.edu, on Twitter @CIP2GMU, or on LinkedIn here.

This summer, Tomás Gómez-Arostegui, a 2019-2020 Edison Fellow, along with co-author Sean Bottomly, finalized an article for the Fellowship, The Traditional Burdens for Final Injunctions in Patent Cases c.1789 and Some Modern Implications. The article was originally published in 2020 in the Case Western Reserve Law Review and can be found on SSRN at the link above. Tomás is the Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar and Professor of Law at Lewis & Clark Law School.

In July, C-IP2 welcomed Professors John F. Duffy and F. Scott Kieff as Senior Scholars and Professors Dmitry Karshtedt and Yogesh Pai as Scholars.

This July, Gerardo Con Diaz’s Edison paper from his 2019-2020 participation in the Edison Fellowship, Patent Law and the Materiality of Inventions in the California Oil Industry: The Story of Halliburton v. Walker, 1935-1946, was published by Cambridge University Press. Con is an Associate Professor at UC Davis and a historian of digital law.

We are pleased to announce that, as of August 1, 2021, the Innovation Law Clinic has been accepted into the USPTO’s Clinic Certification Program. Many thanks to the USPTO and to Dale Lazar of Scalia Law, Randy Noranbrock and Thomas Auchterlonie of Hauptman Ham, and Raj Davé of Davé Law Group for their help in the process. We are fortunate to have such excellent support from our alumni and community.

In August, C-IP2 welcomed Chief Judge Susan G. Braden (Ret.) as our first Jurist in Residence. Judge Braden retired from the United States Court of Federal Claims in 2019 after serving for 16 years, including her time as the Chief Judge. Following her retirement, in addition to joining C-IP2, Judge Braden is serving on the USPTO’s Private Patent Advisory Committee, the Administrative Conference of the U.S., the Advisory Board of the Washington Legal Foundation, and the Board of Directors of the United Inventors Association, as well as on the boards of several other organizations. We look forward to continuing to work with Judge Braden on future projects, including an upcoming law review article that she is co-authoring with C-IP2 Faculty Director Professor Sean O’Connor.

In August, C-IP2 also welcomed Professors Camilla A. Hrdy and Christopher M. Newman as Scholars and Terrica Carrington, David Grossman, and Hina Mehta as Practitioners in Residence.

In August, C-IP2 announced the promotion of Deputy Director Joshua Kresh to Managing Director. Even as Joshua was C-IP2’s first “virtual hire” due to COVID-19, he successfully integrated with the team and has proved invaluable in C-IP2’s ability to not only maintain existing operations, but also advance new initiatives. “Joshua has exceeded my expectations for his position in C-IP2 and as we begin a new academic year it is only fitting to recognize formally the role he has been playing in leading our team,” said C-IP2 Faculty Director Sean O’Connor. In this new position, Joshua will be the primary point of contact for C-IP2, lead day-to-day operations, and manage staff. To reach Joshua, please see his profile page on C-IP2’s website.

Antonin Scalia Law School started a new semester on Monday, August 23 and welcomed 259 incoming First Year JD students, as well as 19 new residential LLMs, 37 online LLMs, 12 JM students, and 29 transfer students. This fall, C-IP2’s Professors Sean O’Connor and Sandra Aistars are again leading the Innovation Law Clinic and the Arts & Entertainment Advocacy, respectively.

The USCO Sovereign Immunity report was released in August 2021 and acknowledged the helpful work of the Arts and Entertainment Advocacy Clinic. Register of Copyrights and Director, Shira Perlmutter stated, “I am also grateful to the Arts & Entertainment Advocacy Clinic at the Antonin Scalia Law School. Led by Sandra Aistars, Senior Fellow for Copyright Research and Policy and a Senior Scholar at the Law School’s Center for Intellectual Property x Innovation Policy, and adjunct professor Stephanie Semler, law students Michaela Cloutier, Jacob Hopkins, Kyle Maxey, Gina McKlveen, Laura Quesada, and Austin Shaffer worked diligently to review evidence of state infringement submitted by parties in furtherance of this report. I appreciate their thoughtful contributions.”

Sandra Aistars (C-IP2 Senior Fellow for Copyright Research and Policy & Senior Scholar; Founding Director, Arts & Entertainment Advocacy Clinic; Clinical Professor of Law, George Mason University Antonin Scalia Law School)

    • Spoke about IP and trade agreements, including the proposed TRIPS waiver, at Biocom California’s Q2 IP Committee virtual meeting on June 10
    • During the 2021 WIPO-U.S. Summer School of IP, taught the session on “Fundamentals of Copyright,” moderated the panel on “Copyright in the Creative Industries,” and held a fireside chat with Shira Perlmutter, Register of Copyrights and Director of the United States Copyright Office. She also held an IP “Office Hours” session for students with Prof. O’Connor and Joshua Kresh.

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

    • During the 2021 WIPO-U.S. Summer School of IP, taught the session titled “Overview and Economics of Intellectual Property”
    • Quoted in a June 30 article on LATimes.com, “Elizabeth Warren calls for more scrutiny of Amazon-MGM deal.”
    • Cited in a July 19 article by Law360.com, “FTC Should Take Nuanced Approach on Noncompete Regs”

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

    • Was a guest speaker for IPWatchdog’s Patent Masters™ Litigation 2021 on Wednesday, June 9, 2021
    • During the 2021 WIPO-U.S. Summer School of IP, co-taught the session titled “Enforcing Right: U.S. Patent Litigation” with C-IP2 Managing Director Joshua Kresh
    • Joined C-IP2 as a Juror in Residence in August
    • In August, continued to work on an article with Professor Sean M. O’Connor discussing why Section 1498 is not a “license” for the federal government to infringe patents and thus cannot be used to lower drug prices
    • In August, attended the USPTO Private Patent Advisory Committee (PPAC) PTAB Subcommittee meeting, Executive Meeting of the USPTO’s PPAC, and the Public Meeting of the USPTO’s PPAC

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

    • On July 29, was appointed as a trustee of the Copyright Society of the USA (CSUSA)
    • Joined C-IP2 as a Practitioner in Residence in August

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

    • Quoted in a July 8 blog on The Beacon, “Protecting Intellectual Property Rights Will Save Lives Now and in the Future.”

John F. Duffy (C-IP2 Senior Scholar; Samuel H. McCoy II Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law)

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

    • Joined C-IP2 as a Scholar in June
    • As part of the 2021 Southeastern Association of Law Schools (SEALS) Conference, gave a presentation on Datafication at the Patent Office during a discussion group on “New Perspectives in Technology Law and Intellectual Property” on July 28, and on July 29, gave a presentation on Monitoring Corporate Cybersecurity & Data Privacy Risk during an intellectual property workshop on “Tensions Within Law & Technology”
    • Also gave a virtual presentation on Monitoring Corporate Cybersecurity & Data Privacy Risk to the Junior IP Scholars Association (JIPSA) in July
    • Organized and moderated the July 29 panel on “Emerging Digital Legal Issues for Businesses & Managers” at the 2021 Society for Business Ethics (SBE) Annual Conference
    • Joined C-IP2 as a Scholar in August
    • In August, named a 2021-2022 faculty fellow with the Nebraska Governance and Technology Center at University of Nebraska College of Law
    • Presented Monitoring Corporate Cybersecurity & Data Privacy Risk at Academy of Legal Studies in Business (ALSB) Annual Meeting, held virtually August 1-6, 2021.
    • Presented Datafication at the Patent Office at the 21st Annual IP Scholars Conference (IPSC), held virtually August 4-5, and 11-12, 2021.
    • Presented Monitoring Corporate Cybersecurity & Data Privacy Risk at Loyola Univ. Chicago School of Law: Prof. Charlotte Tschider’s Domestic Cybersecurity Law course, held virtually on Aug. 25, 2021.

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

    • Joined C-IP2 as a Practitioner in Residence in August

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

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

    • Joined C-IP2 as a Scholar in August

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

    • Joined C-IP2 as a Scholar in July
    • Quoted in a July 8 article by Law.com, “Patent Owners are Throwing in the Towel on Arthrex – With a Couple Exceptions”
    • Quoted in a July 21 article by MedCityNews., “Cost-cutting generics and biosimilars stuck in legal limbo”
    • On July 22, presented a paper, Volition and Intent in the Law of Direct Copyright Infringement, at the virtual Junior IP Scholars Association Workshop with Sean Pager
    • Started a visiting position at the University of Copenhagen’s Centre for Advanced Studies in Biomedical Innovation Law (CeBIL)
    • Co-presenter, United States v. Arthrex (with Alan B. Morrison & John M. Whealan) at the George Washington Law School Summer Wednesday Virtual Lunch Series, on July 28.
    • On August 4, presented a paper, Volition and Intent in the Law of Direct Copyright Infringement, at the virtual 21st Annual Intellectual Property Scholars Conference with Sean Pager
    • Quoted in an August 6 article by Bloomberg Law, “Teva ‘Skinny Label’ Ruling Comes Amid Lawmaker Drug Cost Fight”
    • On August 26, discussed the fate of genus claiming in patent law at an LSPN Connect webinar organized by Newton Media and World IP Review

The Honorable F. Scott Kieff (C-IP2 Senior Scholar; Fred C. Stevenson Research Professor, The George Washington University Law School; Former Commissioner, U.S. International Trade Commission)

    • Joined C-IP2 as a Senior Scholar in July

Joshua Kresh (C-IP2 Managing Director)

    • During the 2021 WIPO-U.S. Summer School on IP, he moderated the panel on “The Role of IP Institutions in the Global IP System” and co-taught the session titled “Enforcing Right: U.S. Patent Litigation” with Judge Susan G. Braden. He also held an IP “Office Hours” session for students with Profs. Sean O’Connor and Sandra Aistars.
    • Promoted to C-IP2 Managing Director on August 25

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

    • Forthcoming University of Missouri School of Law Legal Studies Research Paper Ignoring Drug Trademarks to be published in the Wake Forest Law Review

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

    • Gave a webinar on research trends at George Mason University for the University of Bahrain’s Research Nights in May
    • During the 2021 WIPO-U.S. Summer School of IP, taught the session titled “Transfer of Technology and Licensing”
    • Was a panelist on “Innovation and Entrepreneurship Ecosystem” on July 16th at LEAD VA Class 2021, Northern VA Chamber of Commerce
    • Quoted in a July 28 GMU News article, “Mason’s Michael Buschmann and team at start-up AexeRNA Therapeutics Inc. pursue patents for improved COVID-19 vaccines”
    • Starting in August, continued affiliation with C-IP2 under new title of Practitioner in Residence
    • During August 2-4, volunteered an expert instructor for the virtual “Practical Negotiations Course” delivered by the Association of Technology Managers (AUTM)
    • In its August 26 newsletter, George Mason University’s Institute for Biohealth Innovation mentioned Hina Mehta and her team at Mason’s Office of Technology Transfer for an outstanding 2021 fiscal year, citing a number of invention disclosures and licenses

Emily Michiko Morris (C-IP2 Scholar; C-IP2 2021-2022 Edison Fellow; David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, University of Akron School of Law)

    • Joined C-IP2 as Scholar in June
    • On August 4, presented her forthcoming article, A Global Pandemic Remedy to Vaccine Nationalism (co-authored with Orit Fischman-Afori and Miriam Marcowitz-Bitton, Cornell Int’l L.J., forthcoming) at IPSC 2021 (virtual), sponsored by the Cardozo School of Law
    • On August 6, presented her current project on pharma-specific incentives to invest in R&D at the Inaugural Workshop for Asian American and Pacific Islander Women in the Legal Academy (virtual), sponsored by Penn State Law and Western New England School of Law

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

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

    • During the 2021 WIPO-U.S. Summer School of IP, taught the session titled “The Different Kinds of Property in Intellectual Property”; moderated the panel “Patents in the Innovation Industries”; held a fireside chat with Andrei Iancu, Former Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office; and moderated the panel “Vaccines, Intellectual Property, and Global Equity,” which was co-hosted with the Smithsonian’s Lemelson Center for the Study of Invention and Innovation. He also held an IP “Office Hours” session for students with Prof. Sandra Aistars and Joshua Kresh.
    • Taught on July 6 and July 7 during the WIPO-CEIPI-IP Advanced Course on IP, Technology Transfer and Licensing, which was held June 28-July 9

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

    • During the 2021 WIPO-U.S. Summer School of IP, taught the session titled “Fundamentals of U.S. Patent Law”
    • Spoke at the virtual conference Standards & Patents: Law and Litigation, which was held from July 14 through July 16
    • July 27 – New think piece in Competition Policy International’s (CPI) latest Antitrust Chronicle
    • On August 17, participated in a webinar on Arthrex for the Federalist Society Regulatory Transparency Project

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

    • Joined C-IP2 as a Scholar in July
    • On August 11, participated in a virtual panel discussion on “COVID-19’s Intellectual Property Rights (IPRs) Waiver: Will suspending IPRs bring COVID- 19 vaccines to Mexico and the world more rapidly?,” which was organized by the Geneva Network and Fundación IDEA, Mexico.

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

    • During the 2021 WIPO-U.S. Summer School of IP, taught the session on “Securing & Using Copyright Protection Globally”
    • Cited in a July 13 article by Law360.com, “ITC Already Has Authority Offered By Trade Secret Misuse Bill”

Mark F. Schultz (C-IP2 Senior Scholar; Goodyear Tire & Rubber Company Chair in Intellectual Property Law, University of Akron School of Law; Director, Center for Intellectual Property Law and Technology)

    • During the 2021 WIPO-U.S. Summer School of IP, taught the sessions on “Fundamentals of Trade Secrets,” “Real World Value of Trade Secrets in a Global Innovation Economy,” and “Best Practices for Protecting Trade Secrets,” and moderated the panel titled “Trade Secrets in Global Business”
    • Earlier in 2021, was the drafting team co-lead on the Sedona Conference Framework for Analysis on Trade Secret Issues Across International Borders: Extraterritorial Reach (Sedona Conference 2021), which has been published for public comment and is available here, and in June, spoke about the project at the virtual 2021 Sedona Conference webinar for the Sedona Working Group 12 on Trade Secrets
    • On August 11, participated in a virtual panel discussion on “COVID-19’s Intellectual Property Rights (IPRs) Waiver: Will suspending IPRs bring COVID- 19 vaccines to Mexico and the world more rapidly?,” which was organized by the Geneva Network and Fundación IDEA, Mexico.

Ted Sichelman (C-IP2 Senior Scholar; Professor of Law, University of San Diego School of Law; Director, Center for Intellectual Property Law & Markets; Founder & Director, Center for Computation, Mathematics, and the Law; Founder & Director, Technology Entrepreneurship and Intellectual Property Clinic)

    • Cited in a July 19 article by Law360.com, “FTC Should Take Nuanced Approach on Noncompete Regs”
Scholarship & Other Writings

Jonathan M. Barnett, Anti-innovation Policy, Center for Strategic & International Studies (June 4, 2021)

Jonathan M. Barnett, Christopher Beauchamp, Sean Bottomly, Gerardo Con Díaz, Alexander Galetovic, B. Zorina, Khan, Victor Menaldo, and Steven W. Usselman, The Battle over Patents: History and Politics of Innovation, ed. Stephen H. Haber and Naomi R. Lamoreaux (Oxford University Press 2021)

Jonathan M. Barnett, Going Back to Antitrust Basics, Truth on the Market (July 1, 2021)

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

Jonathan M. Barnett, How IP Rights Keep Markets Free, Hudson Institute (June 9, 2021)

Jonathan M. Barnett and Ted Sichelman, The flawed case against noncompetes, The Hill (July 29, 2021)

Jonathan M. Barnett, Old Ideas and the New New Deal, Truth on the Market (Aug. 2, 2021)

Jonathan M. Barnett, Patent Groupthink Unravels, 34 No. 2 Harvard Journal of Law & Technology 420 (Spring 2021) [SSRN]

Jonathan M. Barnett, Startup Exit Strategies in the New Antitrust Era, Bloomberg Law (Aug. 11, 2021)

C-IP2 Staff, CPIP Second Quarter Progress Report (March-May 2021), C-IP2 Blog (June 29, 2021)

C-IP2 Staff, Panel Discussion: Vaccines, Intellectual Property, and Global Equity, C-IP2 Blog (July 6, 2021)

C-IP2 Staff, A View from Both Sides: COVID-19, the TRIPS Waiver, IP Rights, and How to Increase the Supply of Vaccines, C-IP2 Blog (June 22, 2021)

Eric Claeys, Covid-19 and Intellectual Property Rights, Law & Liberty (July 6, 2021)
Also: Eric Claeys, Covid-19 and Intellectual Property Rights, VBLSA (July 6, 2021)

Gerardo Con Diaz, Patent Law and the Materiality of Inventions in the California Oil Industry: The Story of Halliburton v. Walker, 1935-1946, Enterprise & Society 1-23 (July 29, 2021)

Tabrez Y. Ebrahim, Intellectual Property Through a Non-Western Lens: Patents in Islamic Law, 37 Georgia State University Law Review 789 (2021)

Joel B. Eisen and Kristen Jakobsen Osenga, “Smart Grid standards development and patent protection in the United States: striking the balance between dramatic overhaul of the electric grid and encouragement of innovation,” in Intellectual Property and Sustainable Markets, ed. Ole-Andreas Rognstad and Inger B. Ørstavik, (Edward Elgar Publishing, Inc., 2021), 188-205

Tómas Gómez-Arostegui and Sean Bottomley, The Traditional Burdens for Final Injunctions in Patent Cases c.1789 and Some Modern Implications (September 7, 2020), 71 Case Western Reserve Law Review 403 (2020)

Christopher M. Holman, The Federal Circuit Continues to Grapple with the Question of Patent Eligibility for Diagnostic Methods, 40 Biotechnology Law ­Report 151 (2021)

Mark David Janis and Ted M. Sichelman, “Chapter 1: The Patent and Its Claims,” in Patent Law: An Open-Source Casebook (Fall 2021)

Dmitry Karshtedt, Nonobviousness: Before and After (April 6, 2021), 106 Iowa Law Review 1609 (2021), GWU Legal Studies Research Paper No. 2021-25, GWU Law School Public Law Research Paper No. 2021-25

Jyh-An Lee and LiLi Yang, Viagra Did Not Work, but Michael Jordan Still Made It: Trademark Policy Toward the Translation of Foreign Marks in China (forthcoming)

Erika Lietzan, Ignoring Drug Trademarks (June 16, 2021), Wake Forest Law Review (Forthcoming)

Sean O’Connor, The curious contrast between corporate authorship and inventorship in the United States, in Niklas Bruun & Marja-Leena Mansala (Eds.) Research Handbook on Intellectual Property and Employment Law (Edward Elgar 2021)

Kristen Osenga, Putting Together a Competitive Puzzle: How to Understand and Assemble the Pieces of the New Madison Approach, CPI Antitrust Chronicle (July 27, 2021)

Kristen Osenga, We Must Win the Race to 5G, InsideSources (June 4, 2021)

Prashant Reddy T. and Yogesh Pai, What’s the point of continuing a discussion on the unworkable TRIPs COVID-19 waiver proposal?, The IPKat Blog (July 13, 2021)

Ryan Reynolds, Just What Is the Case with the CASE Act? A Brief Overview, C-IP2 Blog (June 14, 2021)

Kathleen Wills, Esq., Privacy Law Considerations of AI and Big Data – In the U.S. & Abroad, C-IP2 Blog (July 27, 2021)

Categories
Biotech C-IP2 News International Law Patents

Panel Discussion: Vaccines, Intellectual Property, and Global Equity

scientist looking through a microscopeThe following post comes from Colin Kreutzer, a 2E at Scalia Law and a Research Assistant at C-IP2. 

The COVID-19 pandemic has shined a spotlight on the role of intellectual property in modern medicine and on the complex social questions surrounding a system that grants exclusive rights over life-or-death products. On the one hand, there is clearly a difference between public access to lifesaving medicines and other patented goods, such as consumer electronics. However, creating these drugs required billion-dollar investments and enormous risk, made feasible only by that promise of IP rights. Wouldn’t taking that promise away harm future development of new medicines? As the world considers a waiver of IP rights over COVID-19 vaccines and other technologies, experts are analyzing not only what’s right and what’s wrong, but also what works and what doesn’t.

On June 10, 2021, C-IP2 and the Smithsonian’s Lemelson Center for the Study of Invention and Innovation held a panel discussion on vaccines, intellectual property, and global equity. With opening remarks by Lemelson Director Arthur Daemmrich, and moderated by C-IP2 Faculty Director Professor Sean O’Connor, the panel featured Dan Laster, Director of the Washington State COVID-19 Vaccine Action Command and Coordination System (VACCS) Center; Professor Arti K. Rai, Elvin R. Latty Professor of Law and Co-Director of the Duke Law Center for Innovation Policy; and Eric Aaronson, Senior Vice President and Chief Counsel, Corporate Affairs, Intellectual Property and Intellectual Property Enforcement, Pfizer Inc.

Opening Remarks

Mr. Daemmrich began with a historical perspective of medical developments in this country, as well as the social, economic, and regulatory issues that would invariably be tangled up within them. His tale foretold many of the conflicts we see today—going from a time when most modern medicines didn’t exist, and high mortality was a fact of life, to a time when vaccines and other treatments existed, but access depended partly on wealth. In between those two periods, we saw rapid growth in IP protection that helped move society from one to the other. But whether in the form of religious opposition to smallpox inoculation, regulatory reforms after tragedies from bad medicine, or protests from a marginalized community during the AIDS crisis, legal and social issues have always played a prominent role in the story of medical science.

Building on this historical base, Mr. Daemmrich posed the problem now facing us: compared to other medicines, there are relatively few vaccines. On a grand scale, the entire field of vaccination is still in a stage of early development, and there exists great potential for growth in the future. The question is how to best stimulate that growth, or rather, how to ensure the greatest access to already-developed vaccines without stifling the creation of new ones?

Prof. O’Connor then led the panel with a series of questions. He began by asking about the difference between two classes of medicine. Vaccines are generally thought of as biologics—treatments that are derived from live cells­—whereas pharmaceuticals belong to the class of “small-molecule” drugs. They are primarily chemical compounds rather than a biological product.

Q: From an IP perspective, are vaccines different from small molecule pharmaceuticals? What role does IP play in making vaccines available?

 Prof. Rai responded that vaccines are indeed very different from small molecule drugs. From an IP perspective, the two classes derive their greatest protection from different sources.

Small molecule drugs can be produced without the need for company trade secrets. All the most critical information can be found within the text of the patent. So, the greatest protection comes from the patent itself, which grants its owner the right to exclude others from making or using the drug, and from data exclusivity, which prevents other companies from using the original developer’s clinical data to obtain regulatory approval of its own product.

Vaccines, on the other hand, cannot be quickly copied solely by reading the patent. There is a great deal of “know-how” involved in the manufacturing process. Because of this, trade secrets can be just as important to vaccine protection as the patent.

The role of IP in vaccine access, she said, is an interesting question. While public funding exists in the world of small molecule drugs, it has a “heavier footprint” in vaccine development, which then has some impact on the incentive model as it applies to vaccines.

Mr. Laster said the role of public funding was critical to his prior work at PATH, an organization devoted advancing global healthcare equity through public-private partnerships and other initiatives. Public funding has a “de-risking” effect in that the high costs and uncertainty of clinical trials are not borne entirely by the private sector. And because vaccine development typically requires cooperation among many parties, it is valuable to have different types of incentives in play (i.e., “pull”-type incentives, such as patent grants, as well as “push”-types, such as public funding). But from an IP perspective, exclusivity can pose a challenge to those cooperative efforts.

Additionally, he said that the detailed know-how involved with vaccines makes technology transfer incredibly difficult. If the intended receiver in a developing nation lacks the capacity to utilize the technology, how can effective tech transfer work in real-world practice? The question is less about whether we should be transferring vaccine technology to developing nations than it is about whether we can.

Mr. Aaronson said that a key piece of our IP system is that it does allow for greater cooperation by providing a means of transferring technology among partners while preventing that technology from being used for unauthorized purposes. He credits that cooperative system for enabling Pfizer to partner with BioNTech, producing a vaccine in record time. He added that this vaccine is currently supplied in 116 countries and counting, that they have committed to supplying at least 2.5 billion doses, and that they have just struck a purchase agreement with the United States for 500 million doses to supply lower-middle income nations. The required research, discovery, and development would not have been possible without a strong IP system that provides the right incentives and enables secure technology sharing among a large host of players.

Q: While we don’t know what final form the waiver might take, do you see it playing a necessary role in actually increasing vaccine supply and access in the coming year or two? Are there potential downsides to an IP waiver that should be considered?

Prof. Rai said that the biggest effect of a waiver would likely be its “symbolic” value, as other factors will have a much greater impact on vaccine access. But even if there were no substantive effect, it would be good for high-income nations to demonstrate an interest in global health issues. However, she considered the waiver issue “a little bit of a sideshow,” saying it likely would be “neither as bad as opponents fear nor as good as proponents hope.”

Prof. O’Connor noted that this is a particularly difficult question to answer when nobody knows what form any potential waiver would eventually take.

Mr. Laster based his perspective on his ten years of negotiating vaccine development and distribution efforts with PATH, saying he is “not sure [the waiver] aligns well” with what’s needed. Recognizing the importance of trade secrets and the complexity of the partnerships involved, he says a successful system must encourage willing cooperation. Simply waiving IP rights won’t necessarily do that. He also cautioned against taking a “static view” of the problem by taking for granted that the vaccine already exists rather than considering the IP system that helped create it, and failing to ensure that the same system is incentivizing new vaccines in the future. That said, the threat of a waiver might provide enough encouragement to bring about voluntary participation before an actual waiver becomes a reality. He credits this threat with already having a noticeable effect on pricing and other strategies.

Mr. Aaronson added that we are dealing with multiple vaccines based on very different technologies. Concentrating “a little more on the practical versus the theoretical,” he noted that the impacts of an IP waiver can vary greatly from one technology to another. The mRNA vaccine is the first drug of its type to ever receive approval. Much of the necessary tech transfer would not be limited to COVID-19, but could apply to the entire mRNA technology platform, drastically impacting its value. Waiving the rights to a groundbreaking technology could reduce the incentive to explore uncharted technological fields.

He also said it’s not certain that waiving IP rights would yield a net increase in the number of doses produced. The existing developers are producing large amounts of the vaccine. Opening the supply chain up to new entrants who may not be able to effectively utilize those supplies could yield a net decrease in production.

Prof. O’Connor also took audience questions for the panel. Some are listed below, starting with a “great foundational question.”

Q: How would it be ethical to allow lifesaving medicines and vaccines to be patented?

Prof. O’Connor began by addressing the purely legal perspective—that such patents are allowed under U.S. law, although there have been exceptions in some other countries at certain times because of this complex ethical question.

Mr. Aaronson said it’s important to think about patents as a part of a broader incentive structure. Are we putting the incentives in place to get someone to get up every morning and put in the work, money, and risk to create a product? We need an incentive structure, or there won’t be anyone making those lifesaving medicines. A patent system is one way to achieve this.

Q: If patent disclosures cannot teach producers how to make a vaccine without also getting corresponding know-how, how can they satisfy the disclosure requirement for patentability?

Prof. Rai has written multiple articles about this question (see one here) and offered several reasons. Some of the know-how is not easily written down. The need for shared know-how could possibly be satisfied by depositing biological materials with the Patent Office, but this is unlikely to happen. Another reason is that the final product that emerges from a years-long regulatory approval process is not always identical to the product described in the patent. There is also a mistaken view that patents and trade secrets cannot protect the same product. It is true that a singular feature cannot be both patented and kept as a trade secret, but a single product may have different features that are protected under one regime or the other.

Mr. Aaronson also pointed out that a single drug may be protected by many patents. Some of the know-how simply involves knowing how to properly combine the patented technologies.

Q: If most of the medical innovations occur in wealthy nations, IP laws will lock developing nations out, at least initially. Is there a way to include developing nations earlier in the innovation process?

All panelists agreed on the importance of this issue, as well as on the fact that it’s much easier said than done. Prof. Rai said that every nation must begin to create its own manufacturing capacity to avoid reliance on others, but this requires large amounts of human capital and infrastructure. The problem really goes beyond medicine to the balance of rich and poor nations generally. Mr. Laster said this is the sort of thing he was working on with PATH, which has created some networks, but there is a long way to go. Building the required skillsets and infrastructure locally takes time, but public-private partnerships can help. Mr. Aaronson said that it’s essentially like asking a nation to stop being a low-income country. It’s a somewhat circular issue, in which money is required to build infrastructure, but infrastructure is required to make money. However, this is where IP is not the problem; it is the solution. A strong IP system can create the necessary investment incentives to begin building a better future in any nation.

Closing Remarks

In closing, Prof. Rai said that “regrettably, the public debate on the . . . waiver has been very simplistic.” She hoped that the panel had “shed some light” on the issue and thanked her fellow panelists for a respectful and productive dialogue. Mr. Last er agreed that “it is a complex topic” but said that “it’s not about the waiver;  I do think there are mechanisms that can lead more likely to the outcomes we want.” Mr. Aaronson finished by saying that “we all have the same goal, to figure out ways to bring medicines and vaccines to patients, no matter where they are in the world. We’re fortunate and thrilled that our vaccine has had that potential to change lives, and our goal is to continue . . . to ensure access” to both this and to future vaccines.

A recording of the panel is available here.