Tag: white paper

Categories
Administrative Agency Innovation Patent Law

The PTAB’s Regulatory Overreach and How it Cripples the Innovation Economy

files labeled as "patents"On August 14, 2017, the Regulatory Transparency Project of the Federalist Society published a new white paper, Crippling the Innovation Economy: Regulatory Overreach at the Patent Office. This white paper examines how an administrative tribunal created in 2011—the Patent Trial and Appeal Board (PTAB)—has become “a prime example regulatory overreach.” Several CPIP scholars are members of the Intellectual Property Working Group in the Regulatory Transparency Project that produced the white paper, including Professors Adam Mossoff, Kristen Osenga, Erika Lietzan, and Mark Schultz, and several are listed as co-authors.

Among the sweeping changes to the U.S. patent system included in the America Invents Act (AIA) was the creation of the PTAB, a new administrative body within the U.S. Patent and Trademark Office (USPTO). The PTAB hears petitions challenging already-issued patents as defective. Anyone can file a petition to have a patent declared invalid. The original idea was that this would help to weed out “bad patents,” i.e., patents that should not have been issued in the first place.

In the past five years, however, it has become clear that the PTAB has become an example of an administrative tribunal that has gone too far. Lacking the proper procedural and substantive restraints that constrain courts and even other agencies in respecting the rights of citizens brought before them, the PTAB is now “killing large numbers of patents and casting a pall of uncertainty for inventors and investors.”

In just a few years, the laudable goal of the PTAB in providing a cheaper, faster way to invalidate “bad patents” has led to a situation in which all patents now have a shroud of doubt around them, undermining the stable and effective property rights that serve as the engine of the innovation economy. The former chief judge of the court that hears all patent appeals recently said that the PTAB is a “patent death squad,” and confirming that this is not extreme rhetoric, the first chief judge of the PTAB responded to this criticism by embracing it: “If we weren’t, in part, doing some ‘death squadding,’ we would not be doing what the [AIA] statute calls on us to do.”

The white paper briefly discusses the history and purpose of the U.S. patent system and describes the PTAB and how it operates. The substance of the white paper details extensively the procedural and substantive problems in how the PTAB has failed to respect both the basic requirements of the rule of law and the rights of patent owners. The concern is that this undermines the stable and effective platform that patent rights provide as the engine of the innovation economy.

To read the white paper, please click here.

Categories
Administrative Agency Copyright Legislation Uncategorized

Principles and Priorities to Guide Congress’s Ongoing Copyright Review

Last week, CPIP published a new white paper, Copyright Principles and Priorities to Foster a Creative Digital Marketplace, by Sandra Aistars, Mark Schultz, and myself, which draws from the testimonies and scholarly writings of CPIP Senior Scholars in order to guide Congress as it continues its comprehensive review of the Copyright Act. The white paper discusses the constitutional origins of copyright protection and offers principles and priorities for Congress to consider as it moves forward with the copyright review process.

The current copyright review began in early 2013, when Register of Copyrights Maria Pallante threw down the gauntlet in her Horace S. Manges lecture by urging Congress to create “the next great copyright act.” While noting that minor legislative tweaks certainly have their place, Register Pallante suggested that it’s time for Congress to do something far more sweeping. Since then, Congress has embarked on a comprehensive review of our copyright laws, conducting over twenty hearings since mid-2013.

CPIP Senior Scholars have been actively engaged in that hearing process. Prof. Sandra Aistars (while she was CEO of the Copyright Alliance) testified on the creative community’s contributions to innovation and suggested several principles for the review process. Prof. Mark Schultz offered testimony on the scope and subject matter of copyright, and Prof. Sean O’Connor gave testimony on the failure of the DMCA’s notice-and-takedown regime.

As we discuss in the white paper, the premise of our copyright system is that copyrights are more than just incentives to create—they’re also rewards to authors for their productive labors. The Founders understood that authors’ rights and the public good are complementary, and they knew that public interests are best served when individual interests are properly secured. That understanding has proved quite prescient, as copyright today drives many innovations that provide remarkable benefits to our economy, society, and culture.

In the white paper, we propose the following organizing principles for any further work reviewing or revising the Copyright Act:

    A. Stay True to Technology-Neutral Principles and Take the Long View
    B. Strengthen the Ability of Authors to Create and to Disseminate Works
    C. Value the Input of Creative Upstarts
    D. Ensure that Copyright Continues to Nurture Free Speech and Creative Freedom
    E. Rely on the Marketplace and Private Ordering Absent Clear Market Failures
    F. Value the Entire Body of Copyright Law

We then note that these principles in turn suggest that Congress prioritize the following areas for action:

    A. Copyright Office Modernization
    B. Registration and Recordation
    C. Mass Digitization and Orphan Works
    D. Small Claims
    E. Notice and Takedown
    F. Streaming Harmonization

The ball is still rolling with the copyright review process. The House Judiciary Committee began a listening tour this fall that kicked off in Nashville and then traveled to Silicon Valley and Los Angeles. Moreover, those who testified at the earlier hearings have been invited back to meet with Committee staff and discuss any further input they might have. And the Committee is open to “any interested party” coming in to discuss their interests.

All told, this lengthy review process places Congress in a good position to take the next step in bringing us closer to Register Pallante’s “next great copyright act.” And to that end, we hope that our white paper will help Congress keep the constitutional premise of copyright protection in mind as it chooses where we go from here.

To read the full white paper, please click here.