CPIP Scholars File Amicus Brief in New York v. Actavis
On January 15, 2015, CPIP Senior Scholars Adam Mossoff and Kristen Osenga, along with CPIP Edison Fellows Greg Dolin and Ryan Holte, filed an amicus brief in support of Actavis’s appeal to the Second Circuit Court of Appeals in the antitrust case, State of New York v. Actavis. In this case, the district court issued an unprecedented injunction mandating that Actavis manufacture and sell an older patented drug for the sole purpose of competing with one of Actavis’s newer, patented drugs, declaring that this is justified by antitrust because it benefits Actavis’s competitors. In addition to recognizing the harm to both innovation and consumers, the amicus brief identifies how the district court’s decision contradicts the essence of the property rights in innovation secured in the patent system. The district court is directly attacking the right of non-use secured to all property owners and specifically to patentees under long-standing Supreme Court precedents reaching back over one hundred years, and on this basis alone, its injunction should be reversed.
Read the amicus brief here.
Inventing to Nowhere
December 2014 – CPIP’s Adam Mossoff is featured in Inventing to Nowhere, an important, short, documentary about invention, innovation, and the patent system.
Here’s the description of the movie from the “Save the Inventor” blog:
“Invention is as old as human existence, and no country has promoted and thrived on invention more than the United States thanks to its patent system. But is American invention at risk?
Framed around the story of two first-time inventors, Inventing to Nowhere is a new documentary that explores the stakes in policy fights over the American innovation economy, with interviews of legendary inventor Dean Kamen, historians, members of Congress and other key players in the effort to keep the country innovating.
For more than 200 years, the U.S. patent system has helped protect and grow ideas. This reverence for intellectual property rights has been a driving force in making the United States an economic superpower. But as the patent-law debate becomes more influenced by special interests, the future of inventors and entrepreneurs is in jeopardy.”
Watch the full documentary here.
December 2014, CPIP Releases Two Issue Papers
The AIA was supposed to give the PTO a toolbox of new proceedings to weed out so-called “low quality” patents, but in doing so it impaired the rights of all patent holders by substantially increasing the costs of defending properly-issued patents. Early data on the PTO’s new administrative review programs is very troubling, and the procedures are rife with opportunities for abuse against legitimate patent holders.
Curbing the Abuses of China’s Anti-Monopoly Law: An Indictment and Reform Agenda, by Richard Epstein
There are increasing complaints in both the European Union and the United States about a systematic bias in China’s enforcement of its Anti-Monopoly Law (AML), and the abuses are particularly evident in the patent space. Unfortunately, China may be finding encouragement in recent FTC and DOJ actions that assume, without any actual economic analysis or proof of competitive harm, that certain business deals involving IP are anti-competitive.
It is critical that American legal authorities do not give aid and comfort to China’s discriminatory treatment of foreign companies under the AML by the way in which American regulators either speak about or take action on SEPs or other issues relating to patented innovation in this country.
CPIP Celebrates Second Anniversary, Welcomes Four New Senior Scholars
November 4, 2014 – The Center for the Protection of Intellectual Property is proud to celebrate its second anniversary by welcoming four new CPIP Senior Scholars to the team:
- Professor Chris Holman, University of Missouri-Kansas City School of Law
- Professor Sean O’Connor, University of Washington School of Law
- Professor Kristen Osenga, University of Richmond School of Law
- Professor Eric Priest, University of Oregon School of Law
Professors Holman, O’Connor, Osenga, and Priest bring with them a wealth of expertise in intellectual property law and policy. As their biographies (which we’ve included below) indicate, their scholarship spans a broad range of fields, including IP and biotechnology, copyright law in the U.S. and China, the commercialization of IP, start-ups and IP, patent eligible subject matter, and the list goes on and on.
It has been a true pleasure collaborating with Chris, Sean, Kristen, and Eric over the last two years, and we are thrilled to officially welcome them to the CPIP team!
Chris Holman, Senior Scholar
Chris Holman joined CPIP as a Senior Scholar in 2014. He is a Professor at the University of Missouri-Kansas City School of Law, where his primary research focus lies at the intersection of intellectual property and biotechnology. He has published numerous articles in law reviews and scientific publications such as Science, Cell and Nature Biotechnology, and has authored amicus briefs in a number of important biotechnology patent cases at the Supreme Court and Federal Circuit. In 2008 he was awarded the Daniel L Brenner Faculty Publishing Award for an influential law review article on human gene patent litigation. Prior to becoming a law professor, Holman served as vice-president of intellectual property and patent counsel at several Silicon Valley biotechnology companies and worked as an associate at a major intellectual property law firm. He was also a tenure-track chemistry professor in the California State University system.
Sean O’Connor, Senior Scholar
Sean O’Connor joined CPIP as a Senior Scholar in 2014. He is Assistant Dean for Law, Business & Technology and Professor of Law at the University of Washington School of Law in Seattle. His research focuses on intellectual property and business law with regard to start-ups and commercializing technology and arts innovation. His teaching and law practice specialize in transactions and the strategic role of the general counsel. Professor O’Connor received his law degree from Stanford Law School, a master’s degree in philosophy from Arizona State University, and a bachelor’s degree in history from University of Massachusetts. He is currently working on Method+ology and the Means of Innovation to be published by Oxford University Press.
Kristen Osenga, Senior Scholar
Kristen Osenga joined CPIP as a Senior Scholar in 2014. She is a Professor of Law at the University of Richmond School of Law, where she teaches and writes in the areas of intellectual property, patent law, law and language, and legislation and regulation. Her scholarship has focused on patent eligible subject matter, commercialization of patented innovation, and the intersection of law and linguistics in patent claim construction, among other aspects of patent law. Her scholarly articles can be downloaded here. Professor Osenga is a frequent speaker at symposia on patent law and intellectual property and has made numerous presentations to academic, bar, and industry audiences. Prior to joining academia, she practice patent law and clerked for Judge Richard Linn of the United States Court of Appeals for the Federal Circuit.
Eric Priest, Senior Scholar
Eric Priest joined CPIP as a Senior Scholar in 2014. He is an Assistant Professor at the University of Oregon School of Law, where he teaches and researches in the area of intellectual property law with a focus on copyright law in the information age and creative industry ecosystems in the U.S. and China. Before joining the Oregon Law faculty in 2009, he was a fellow at Harvard Law School’s Berkman Center for Internet & Society working on the NOANK Digital Media Exchange project in China, a collective licensing project for the monetized, legal distribution of digital works over peer-to-peer networks. At the Berkman Center, he also researched and analyzed Internet censorship and surveillance practices in several Asian countries for the center’s OpenNet Initiative. Previously, Eric was an intellectual property associate at the law firm of Dorsey & Whitney LLP. His scholarly publications can be downloaded here.
Eric currently serves on the U.S. Chamber of Commerce’s U.S.-China IP Cooperation Dialogue expert panel, which involves a multi-round dialog in Washington D.C. and China between U.S. and Chinese experts on the most challenging IP issues facing China. The National Committee on U.S.–China Relations recently named him a 2014–2016 Public Intellectuals Program Fellow. Eric holds a Master of Laws from Harvard Law School, a J.D. from Chicago-Kent College of Law, where he was Editor-in-Chief of the Chicago-Kent Law Review, and a B.A., summa cum laude, from the University of Minnesota.
CPIP Hosts Second Annual Fall Conference
COMMON GROUND: HOW INTELLECTUAL PROPERTY
UNITES CREATORS AND INNOVATORS
Keynote Speaker: Professor Richard A. Epstein
October 9-10, 2014
George Mason University School of Law
This groundbreaking conference explored the common ground shared by the innovation industries and the creative industries, where intellectual property secures bold risk-taking and revolutionary ingenuity by artists and inventors alike.
We took a long overdue, fresh look at the relationship between these two central parts of the U.S. economy. Stale conventional wisdom says that the creative industries and innovation industries are inevitably and irreconcilably in conflict. The story goes that creators’ rights are “obstacles” to innovation, and that technological innovation harms creators. This conventional wisdom is wrong.
The true story of innovation and creativity is a virtuous circle. Technology gives artists and creators the tools to create entirely new mediums and the ability to reach worldwide audiences. Creativity, in turn, fuels the video, music, and games that make smartphones, iPads, and even the entire Internet so well-loved.
Innovation is creative and creativity is innovative. Both industries engage in brilliant intellectual work to bring new products and services into the world and both take great risks to commercialize their work. Both also depend on intellectual property, which secures their work and investment, thus promoting the virtuous circle of creativity and innovation.
For videos and panel summaries, check out the conference website
On May 22, 2014, Professor Adam Mossoff testified before the U.S. House of Representatives Energy & Commerce Committee at a hearing regarding patent demand letters. Professor Mossoff explained the First Amendment “compelled speech” and Noerr-Pennington concerns in legislation requiring across-the-board mandatory disclosures in demand letters.
CPIP Hosts Conference on Patent Law
On March 21, 2014, the Center for the Protection of Intellectual Property (CPIP) and the Wisconsin Alumni Research Foundation (WARF) hosted a conference on patent law, From Lab To Market: How Intellectual Property Secures the Benefits of R&D, at George Mason University School of Law.
The keynote speaker was the Hon. Randall R. Rader, and the conference panels were dedicated to discussing the essential role that intellectual property plays in converting the research conducted at universities and labs throughout the country into valuable technology and products, and the legal and policy decisions that affect that process. CPIP and WARF would like to thank our supporting organizations and all the conference speakers and attendees for helping create this timely and thoughtful discussion of the intellectual property framework that allows us to harness the value of our country’s unparalleled R&D.
CPIP Fellow Sean O’Connor Testifies at House Judiciary Committee Hearing on the DMCA Notice and Takedown System
On March 13, 2014, Professor Sean O’Connor (a CPIP da Vinci, Edison, and Twain Fellow), testified before the U.S. House of Representatives Committee on the Judiciary at a hearing regarding the DMCA notice and takedown system. Professor O’Connor discussed how the current notice and takedown regime discourages web businesses from monitoring content for copyright infringement, and encourages a culture of copyright contempt. Despite millions of takedown notices, wholesale copies of creative works (not mash-ups, parodies, or excerpts, but infringing copies of the entire work) are routinely re-posted on the same sites receiving the takedown notices just moments after they are taken down, offering creators no relief from free access to their property.
Professor O’Connor proposed two simple, focused solutions to improve the notice and takedown process for the most egregious cases (continually re-posted wholesale copies) and to decrease the number of notices for all parties involved: (1) “Notice and stay-down,” and (2) codified “willful blindness.”
On January 14, 2014, Professor Mark Schultz testified before the U.S. House of Representatives Committee on the Judiciary at a hearing regarding “The Scope of Copyright Protection.” Professor Schultz discussed the moral and economic importance of broad protection for creative works and broadcasts. In particular, he argued that “creators, businesses, and the public are all best served when our intellectual property laws recognize the essential core value that those who invest labor and risk capital to create and distribute original content deserve protection” of their property. During the Q&A, professor Schultz also noted the need to revisit the DMCA notice and takedown system, which is outdated and no longer works to protect creators’ property rights.
On December 5, 2013, CPIP released an important new policy brief, The Failure of the DMCA Notice and Takedown System: A Twentieth Century Solution to a Twenty-First Century Problem,” by Professor Bruce Boyden of Marquette University Law School. Professor Boyden argues that the DMCA notice and takedown system is outdated and not up to the task of reducing the availability of infringing copies of creative works. A tool that was originally designed as an emergency stopgap measure, to be used in isolated instances, is now expected to manage infringement on a persistent, ubiquitous, and gargantuan scale. Copyright owners currently send takedown notices at an annualized rate of over 78 million infringing files, and yet every day these same files are still available on the most heavily trafficked websites. In short, the notice and takedown system is long overdue for an update that actually works to prevent today’s wide-scale infringement.
On November 7, 2013, Professor Adam Mossoff testified before the U.S. Senate Committee on Commerce, Science, and Transportation at a hearing regarding Patent Assertion Entities. Professor Mossoff urged caution in making additional changes to the patent system so soon after the significant revisions of the America Invents Act of 2011, and he noted that the USPTO and the courts have the necessary tools to address bad actors in the patent system. He also provided historical insight on the patent licensing business model as well as a thoughtful analysis of the problematic terminology used in today’s patent policy discussions.
Inaugural Conference on Patent Law: The Commercial Function of Patents in Today’s Innovation Economy
Keynote Speaker: FTC Commissioner Joshua D. Wright
September 12-13, 2013
George Mason University School of Law
Supporting Organization: American Intellectual Property Law Association
Co-Sponsored by the Federal Circuit Bar Association and
Sterne, Kessler, Goldstein & Fox
On September 12-13, 2013, CPIP hosted its inaugural conference on patent law, “The Commercial Function of Patents in Today’s Innovation Economy,” at George Mason University School of Law. The conference panels addressed the function of the commercial system in the creation and distribution of patented innovation.
The conference was dedicated to a largely neglected perspective on patents: how they facilitate commercial transactions, and thus foster innovation and new businesses and products. Public policy discussions about patents focus almost entirely on litigation, but litigation is just a small part of the patent system. While a few notable disputes get all the attention, the reality is that patents facilitate millions of win-win transactions every day. The conference considered this overlooked perspective on the patent system and what it can contribute to public policy debates. CPIP would like to thank all of the speakers and panelists for helping create an engaging and informative conference.
Judicial Panel on the Patent System
On May 14, 2013, the Center for the Protection of Intellectual Property co-sponsored a panel of distinguished judges, who discussed the current state of the patent system. The panelists were:
- Hon. Richard A. Posner, Court of Appeals for the Seventh Circuit
- Hon. Paul R. Michel, former Chief Judge of the Court of Appeals for the Federal Circuit
- Hon. Arthur J. Gajarsa, former Circuit Judge on the Court of Appeals for the Federal Circuit
- Moderator: Hon. Douglas H. Ginsburg, former Chief Judge of the Court of Appeals for the District of Columbia Circuit
The combined panelists reflected years of experience in adjudicating patent cases, writing on patent or IP policy, and addressing issues related to the patent system, such as antitrust and law and economics. With wide-ranging views on the current health of the patent system and the relevant solutions, the panel discussion was insightful and illuminating. The event was co-sponsored with the Federalist Society’s Intellectual Property Practice Group and was held at the National Press Club.
Selected interview and panel remarks by Judge Michel:
Selected interview and panel remarks by Judge Gajarsa:
Video of the entire event:
CPIP Launches Leonardo da Vinci Fellowship Program
The Center for the Protection of Intellectual Property is proud to announce the launch of our Leonardo da Vinci Fellowship program. This program will provide significant funding for scholarship in intellectual property law, and is a key component of CPIP’s mission to promote a balanced discussion about intellectual property rights and their fundamental role in a successful and flourishing economy.
More Information about the program and how to apply (pdf).
Is the Patent System Working or Broken? A Discussion with Judges Posner and Michel – Podcast
Recently, the Center for the Protection of Intellectual Property co-sponsored a teleforum event with the Federalist Society’s Intellectual Property Practice Group that examined whether the patent system promotes or hampers innovation. We hosted two distinguished jurists: Hon. Paul R. Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Hon. Richard A. Posner of the Court of Appeals for the Seventh Circuit. Both judges have unparalleled depth in knowledge about patent policy and the working details of the patent system. This teleforum brings them together for the first time to discuss their respective views on whether the patent system today is properly securing property rights in new innovation.
Listen to a Podcast of the Teleforum.