In the Spotlight

CPIP Announces New Partnership with the American Society of Media Photographers

On Thursday, May 26, 2016, CPIP and the American Society of Media Photographers (ASMP) announced a new partnership to provide ASMP members with information and advice on the legal issues they face.

CPIP Senior Scholar Sandra Aistars will direct the students in the Arts & Entertainment Advocacy Clinic at Mason Law as they provide services to ASMP members. ASMP will work with Prof. Aistars on initiatives that include law clinics, webinars, FAQs, and blog postings that address such topics as negotiating solid contracts, securing copyright registrations, and other issues related to the protection of intellectual property.

U.S. Patent & Trademark Office and CPIP to Co-Host Conference on the Economic Contribution of Technology Licensing

On Wednesday, June 8, 2016, the U.S. Patent & Trademark Office and CPIP will host an all-day public conference at the USPTO’s Global Intellectual Property Academy in Alexandria, Virginia.

This conference will highlight the economic importance of patent licensing both domestically and across borders. Licensing contributes greatly to domestic innovation and employment, while constituting a significant portion of US trade. It plays an essential role in commercializing new technologies, bringing products and services from lab to market. This conference aims to bring licensing into the policy discussion and to examine how the US government might help in measuring, promoting, and encouraging licensing.



IP Scholars to FCC: Proposed “Set-Top Box” Rules Would Undermine the Property Rights of Creators and Copyright Owners

On April 22, 2016, a group of intellectual property law scholars, including several CPIP scholars, submitted comments in response to the FCC’s proposed “set-top box” rules. Here’s the introduction:

“We write to express our concerns with the Commission’s proposed rules and their potential harmful impact on the property rights of creators and copyright owners. Under the Copyright Act, creators and copyright owners are guaranteed certain exclusive property rights in their creative works, including the exclusive rights to publicly distribute and perform those works. Unfortunately, the Commission’s proposed rules would undermine these property rights by severely limiting creators’ and copyright owners’ ability to determine whom to license their property rights to and on what terms. In so doing, the proposed rules further risk disrupting the free market for creative works that has long been the bedrock of our vibrant creative economy.”

To read the full comments, please click here.

Mason Clinic Students File Comments in Copyright Office Study

We’re very proud of the students in Mason Law’s Arts & Entertainment Advocacy Clinic. Under the leadership of Professor Sandra Aistars, the students drafted two sets of comments for the U.S. Copyright Office’s study of Section 512 of the Digital Millennium Copyright Act.

The first set of comments, drafted by 2L Rebecca Cusey and 3L Terrica Carrington, was filed on behalf of middle class artists. The second set of comments, drafted by 3Ls Danielle Ely and Victor Morales, was filed on behalf of a group of copyright law scholars. Rebecca Cusey also plans to attend the Copyright Office’s roundtable in San Francisco next month to discuss the clinic’s comments.

Comments on Behalf of Middle Class Artists

These comments focus on the experiences of “Middle Class Artists”–those who pursue their work professionally, rather than as amateurs, have enough of a following to be adversely impacted by online infringement, but lack the resources to effectively address it using the tools provided by the DMCA.

Related Coverage: Middle Class Artists Want a DMCA System That Works (by Rebecca Cusey)

Comments on Behalf of Copyright Law Scholars

These comments explain how judicial interpretations of the red flag knowledge standard have disrupted the careful balance of responsibilities that Congress sought to create when it enacted the Digital Millennium Copyright Act. Instead of requiring service providers to take action in the face of red flags, courts have allowed service providers to ignore even the most crimson of flags. Unfortunately, this case law has created an unbalanced atmosphere where service providers are not sufficiently incentivized to work together with copyright owners to develop policies, procedures, and technology to prevent piracy.

Related Coverage: Copyright Scholars: Courts Have Disrupted the DMCA’s Careful Balance of Interests (by Devlin Hartline)

CPIP Senior Scholars Ask Full Federal Circuit to Protect Basic Due Process Rights of Patent Owners in Inter Partes Reviews

On March 14, 2016, CPIP Senior Scholars Adam Mossoff, Sean O’Connor, Kristen Osenga, and Mark Schultz joined seven other law professors in filing an amicus brief in Ethicon v. Covidien asking the entire Federal Circuit to protect the due process rights of patent owners in inter partes reviews.

The America Invents Act provides that the Director of the USPTO decides whether to initiate an inter partes review and that the Patent Trial and Appeals Board (PTAB) then conducts that review. Nonetheless, the Director has delegated the decision to institute an inter partes review to the same PTAB panel that decides its merits. The amici argue that this delegation by the Director violates patent owners’ due process rights since patents are vested private property rights entitled to fair adjudication by an impartial decisionmaker.

To read the full amicus brief, please click here.

CPIP Senior Scholars File Amicus Brief Urging Supreme Court to Correct Inter Partes Review Claim Construction Standard

On February 29, 2016, CPIP Senior Scholars Adam Mossoff, Kristen Osenga, and Mark Schultz, along with Professors Greg Dolin and Irina Manta, filed an amicus brief in Cuozzo v. Lee asking the Supreme Court to reverse the Federal Circuit’s holding that claims in inter partes reviews should be construed under the broadest reasonable interpretation standard.

The amici note that, under current Federal Circuit law, “fundamentally different claim construction principles are applied to the same claim terms at different points in a patent’s life.” An inter partes review uses a claim construction standard that is broader than a district court, and this leads to more invalidations as it includes more prior art. The amici argue that this broader standard constitutes an unconstitutional taking of private property under the Takings Clause, but they note that the Supreme Court can avoid the constitutional issue by interpreting the relevant statute to require the narrower standard.

To read the full amicus brief, please click here.

U.S. Copyright Office and CPIP To Co-Host Symposium Examining Moral Rights in the United States

On Monday, April 18, 2016, the U.S. Copyright Office and CPIP will co-host a symposium on the role of moral rights protection in the United States.

This day-long event will bring together authors, scholars, and other stakeholders for a broad discussion of copyright issues related to moral rights. Topics will include the historical development of moral rights and vehicles for providing them, the value that authors place on moral rights generally and individual moral rights specifically, and new considerations for the digital age.

For more information about this event, please click here.

USCO-CPIP Moral RIghts Symposium

CPIP’s Adam Mossoff Files Amicus Brief Explaining that Patents are Private Property Rights, Not Public Grants of Privilege

On February 29, 2016, CPIP Senior Scholar Adam Mossoff filed an amicus brief in Cooper v. Lee asking the Supreme Court to take the case and to reaffirm that patents are private property rights, not public grants of special privileges.

Traversing case law dating back to the early nineteenth century, Professor Mossoff argues that the holdings of the courts below that patent rights are “public rights” contradict “numerous, longstanding, and binding decisions” of the Supreme Court that “patents are private property rights that are secured under the Constitution.”

To read the full amicus brief, please click here.

Mason Law’s Arts & Entertainment Advocacy Clinic Hosts Legal Advice Sessions and Q&A Discussion for D.C. Area Authors

On February 16, 2016, Mason Law’s Arts & Entertainment Advocacy Clinic hosted an event for D.C. area authors to obtain free legal advice and guidance on copyright and publishing matters from the clinic’s students. The students were advised by experienced copyright practitioners, including Authors Guild General Counsel Jan Constantine, CPIP Senior Scholar Sandra Aistars, and CPIP Research Fellow Kevin Madigan. Ms. Constantine then led a Q&A discussion on the Authors Guild and its pending petition for certiorari in the Google Books case.

For more information about this event, please click here.

CPIP Senior Scholars File Amicus Brief Expressing Concerns About Canada’s Patentability Requirements

On February 12, 2016, CPIP Senior Scholars Adam Mossoff, Mark Schultz, Kristen Osenga, and Chris Holman, along with Professors Greg Dolin, Jay Kesan, and Erika Lietzan, filed an amicus brief in Eli Lilly v. Canada, which is currently before the NAFTA Chapter 11 Tribunal. The amici argue that Canada’s “promise utility doctrine” is inconsistent with global norms regarding patentability requirements and the function and goals of the patent system.

To read the full amicus brief, please click here.

CPIP Releases New Issue Paper Debunking the Royalty Stacking Theory in the Mobile Wireless Industry

On January 20, 2016, CPIP released a new issue paper, Debunking the Royalty Stacking Theory: Real-World Evidence from the Mobile Wireless Industry, by Devlin Hartline & Matthew Barblan.

The royalty stacking theory predicts that the price of products comprised of numerous patented inventions, like smartphones, should rise as each patent owner demands an excessive royalty for its component part. Looking at real-world data from the mobile wireless industry, the authors show that the competitive harms predicted by the royalty stacking theory simply have not come to fruition.

To read the full issue paper, please click here.

CPIP Senior Scholars File Amicus Brief in Pharmaceutical Case Testing Patent-Antitrust Boundary

On December 21, 2015, CPIP Senior Scholars Adam Mossoff and Kristen Osenga joined Professor Gregory Dolin in filing an amicus brief urging the Third Circuit to preserve the careful balance that Congress has struck between patent law and antitrust law.

In Mylan Pharmaceuticals v. Warner Chilcott, the Third Circuit will consider whether antitrust law prohibits a pharmaceutical company from reformulating its drugs. The amici ask the appellate court to affirm the district court’s decision that it does not, pointing out that the imposition of antitrust liability for drug reformulations would threaten innovation in the pharmaceutical industries to the detriment of consumers.

To read the full amicus brief, please click here.

CPIP’s Adam Mossoff Files Amicus Brief in Halo v. Pulse Discussing History of Patent Licensing and Litigation

On December 16, 2015, Professor Adam Mossoff filed an amicus brief in Halo Electronics, Inc. v. Pulse Electronics, Inc., a case currently before the Supreme Court concerning the proper test for enhancing patent infringement damages.

Prof. Mossoff offers the Court historical insights to counter the argument made by some that enhanced damages should not be available to those who merely license their patented innovations. First, he explains how “patent licensing has played a significant and important role in the patent system since the early nineteenth century” that drives “America’s innovation economy.” Second, he demonstrates that “patent litigation rates are within historical norms and, in fact, are lower than patent litigation rates seen for decades in the Antebellum Era.”

To read the full amicus brief, please click here.

CPIP Releases New White Paper on Copyright Principles and Priorities for Congress

On December 2, 2015, CPIP released a new white paper, Copyright Principles and Priorities to Foster a Creative Digital Marketplace, by Sandra Aistars, Devlin Hartline, and Mark Schultz.

As Congress continues its comprehensive review of the Copyright Act, the authors suggest how the law and the institution responsible for its administration–the U.S. Copyright Office–might be updated and restructured to better support a thriving, creative digital marketplace. They offer several organizing principles, as well as several areas to prioritize for action, for Congress to consider as it revises the copyright law.

The authors also give a brief overview of the constitutional origins of copyright protection, explaining how the premise of our copyright system–that authors’ rights and the public good are complementary–comports with the dominant natural rights philosophy in the early American Republic. They then examine several ways in which the copyright system fulfills its purpose, as envisioned by the Founders, by driving innovation in the creative industries.

To read the full white paper, please click here.

CPIP Releases New Issue Paper on How IP-Fueled Innovations in Biotechnology Have Led to the Gene Revolution

On November 30, 2015, CPIP released a new issue paper, The Gene Revolution, by Amanda Maxham, a research associate and writer at the Ayn Rand Institute.

Dr. Maxham explores how innovations in biotechnology, enabled by the intellectual property rights that protect them, have led to the “Gene Revolution,” where scientists use genetic engineering to dramatically improve human life. In order to combat widespread misinformation about genetically modified organisms (GMOs), she traces mankind’s long history of improving plants, animals, and microorganisms to better serve our needs.

In particular, Dr. Maxham looks at twenty-nine different GMOs, including insulin, flu vaccines, cheese-making enzymes, apples, cotton seeds, and pet fish, as examples of the endless possibilities the “Gene Revolution” holds for the betterment of humanity–if we can overcome the groundless mistrust and strive to protect the future of scientific innovation.

To read the full issue paper, please click here.

CPIP Releases Paper Debunking Myths About Trade Secret “Trolls”

On November 17, 2015, CPIP released a draft paper, The Myth of the Trade Secret Troll: Why We Need a Federal Civil Claim for Trade Secret Misappropriation, by James Pooley, the nation’s preeminent expert on trade secret law.

Mr. Pooley explains the arguments in favor of the Defend Trade Secrets Act of 2015 (DTSA), which would create a federal cause of action for trade secret misappropriation. The DTSA is currently being considered by Congress. The paper will be published in a forthcoming issue of the George Mason Law Review.

To read the full paper, please click here.

CPIP Releases New Policy Brief on Harmonizing the Remedies for Criminal Copyright Infringement

On October 27, 2015, CPIP released a new policy brief, Protecting Authors and Artists by Closing the Streaming Loophole, by Devlin Hartline & Matthew Barblan.

They argue that in order to protect authors and artists from having their works repeatedly stolen on the internet, it is long past time to harmonize the remedies for criminal copyright infringement to reflect the ways that copyrighted works are commonly misappropriated these days.

To read the full policy brief, please click here.

CPIP’s Adam Mossoff & Devlin Hartline on State Patent Demand Letter Abuse Laws

On October 16, 2015, Morning Consult published an op-ed by CPIP Senior Scholar Adam Mossoff and CPIP Assistant Director Devlin Hartline on the various state laws that have been enacted since 2013 aimed at curbing patent demand letter abuse. They argue that “this fractured patchwork of legislation threatens the certainty and consistency required for inventors and businesspersons to bring to market new patented innovations.”

Pointing out that many patent owners “legitimately rely on demand letters to communicate with potential licensees and to resolve infringement disputes without going to court,” Mossoff and Hartline note that this fractured system of varying state laws “directly undermines the reason the Framers placed in the Constitution the power in Congress to secure patent rights under federal law.” They conclude: “We should not let individual states jeopardize our nationwide patent system, which for more than two centuries has formed the bedrock of our innovation economy.”

To read the full op-ed on Morning Consult, please click here.

CPIP Hosts Copyright Policy Network Meeting

On October 15, 2015, CPIP hosted a Copyright Policy Network Meeting at George Mason University School of Law. The meeting included representatives from government, academia, and industry who participated in discussions on copyright law and policy.

CPIP Releases New Policy Brief on Smartphone Patent Licensing Myths

On October 7, 2015, CPIP released a new policy brief, Busting Smartphone Patent Licensing Myths, by Keith Mallinson, Founder of WiseHarbor. Mr. Mallinson is an expert with 25 years of experience in the wired and wireless telecommunications, media, and entertainment markets.

Mr. Mallinson discusses several common myths concerning smartphone patent licensing and argues that antitrust interventions and SSO policy changes based on these myths may have the unintended consequence of pushing patent owners away from open and collaborative patent licensing. He concludes that depriving patentees of licensing income based on these myths will remove incentives to invest and take risks in developing new technologies.

To read the full policy brief, please click here.

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