CPIP Releases New Policy Brief and Essays
Saurabh Vishnubhakat, The Commercial Value of Software Patents in the High-Tech Industry
Prof. Vishnubhakat examines the important role patents play in commercializing software innovation and supporting technology markets. He explains how a proper understanding of this commercial role requires a broader view of patents in software innovation than the all-too-common focus on a small handful of litigated patents and legal questions of patentability and patent quality. He concludes that the flexibility and efficiency of the patent system fosters the emergence of new markets for the exchange of technology and knowledge.
Mark Schultz & Devlin Hartline, Copyright’s Republic: Copyright for the Last and the Next 225 Years
To celebrate the 225th anniversary of the first U.S. Copyright Act, CPIP is recognizing the essential contribution of copyright and commercial culture to the United States. To that end, CPIP will be publishing a series of essays highlighting the fact that, contrary to the facile narratives about copyright that dominate modern discussions, copyright isn’t simply a law designed to incentivize the creation of more creative stuff. It has much richer purposes and benefits. Copyright:
- Supports a professional class of creators.
- Enables a commercial culture that contributes to human flourishing.
- Serves as a platform for innovation in both the arts and sciences.
- Promotes a free republic.
Mark Schultz & Devlin Hartline, Promoting an Independent and Professional Class of Creators and Creative Businesses
The current academic and policy discussion of copyright focuses on balancing the gross economic benefits and harms of copyright. A more complete understanding of copyright can account for both the needs and rights of individuals and the public good. Copyright is important because it helps creators make an independent living and allows them to pursue and perfect their craft. In short, it enables a professional class of creators.
Stay tuned for the next essays in the series…
John F. Witherspoon, Emeritus Faculty, Pledges $500,000 to Support the Center for the Protection of Intellectual Property
We are tremendously grateful to John F. Witherspoon, Professor and Director Emeritus of the law school’s Intellectual Property Program, for his recent pledge of $500,000 to support the Center for the Protection of Intellectual Property (CPIP).
Professor Witherspoon was for many years the Director of the law school’s Intellectual Property Law track, the oldest and largest of our specialty track programs. He joined the faculty as an adjunct in 1992. Professor Witherspoon also practiced patent law in his own firm in Washington, D.C. He previously served as an examiner-in-chief and member, Board of Appeals, U.S. Patent and Trademark Office, and clerked for the Honorable Giles S. Rich, U.S. Court of Customs and Patent Appeals (now the U.S. Court of Appeals for the Federal Circuit).
Professor Witherspoon’s donation will be instrumental to CPIP’s ability to fulfill its mission. In particular, it will enhance CPIP’s ability to support cutting-edge research on the law, economics, and history of patents, and to improve the academic, legal, and policy debate regarding patents. His donation is a testament to his commitment to the Mason Law community, and it is an inspiration and example to the Mason family.
CPIP is dedicated to the scholarly analysis of intellectual property rights and the technological, commercial, and creative innovation they facilitate. CPIP explores how strong property rights in innovation and creativity can foster successful and flourishing individual lives and national economies.
Through a wide array of academic and public policy programming, CPIP brings together scholars, industry leaders, inventors, creators, and policymakers to examine foundational questions and current controversies concerning intellectual property rights. Ultimately, CPIP seeks to promote a healthy academic discussion, grounded in rigorous scholarship, and a well-informed public policy debate about the importance of intellectual property.
We are sincerely thankful to Professor Witherspoon for his generosity.
CPIP Sponsoring Thomson Reuters Legal Executive Institute Conference: New IP Business Models: Innovation or Commoditization?
April 23, 2015
Palo Alto, CA
30% Discount Code: CPIP2015
Enforceable patents fuel American innovation and economic growth.
But the innovation cycle in the United States has deteriorated with the erosion of legal patent rights and remedies and the rule set for US patents has changed. The sum of the risks and uncertainty is daunting to innovators, business owners, and investors.
New IP Business Models: Innovation or Commoditization? is the only practical patent conference offering business practices effective today. You will learn what works and what doesn’t and how to allocate resources to win. We are bringing together the premier IP executive decision makers with scholarship balanced to support property rights for US invention, innovation, and enabling technologies.
Join Robert Greene Sterne, founding director of Sterne, Kessler, Goldstein & Foxx P.L.L.C, and Caren Yusem, expert on the new IP business landscape, co-chairs of this year’s event and Chief Judge (ret.) Paul Michel, Court of Appeals for the Federal Circuit and Keynote speaker for the conference, to exchange views as peers and to promote important progress for the business community with the advent of new business models for innovation.
CPIP Senior Scholar Adam Mossoff will be speaking on the “Patent Eligible Subject Matter and Infringement Damages” panel.
CPIP Senior Scholars Join 40 Economists and Law Professors in Letter Expressing Concerns About Data Behind Patent “Reform”
March 10, 2015 — In a letter to Congress today, 40 law professors and economists expressed serious concerns that Congress is considering restructuring the US patent system based on many flawed, unreliable, and unrepresentative studies of patent litigation.
The letter also points to a substantial body of research that questions much of the rhetoric behind the attack on “patent trolls.”
The scholars point out that certain studies cited by legislators and media have been roundly criticized. The letter particularly notes as flawed the claims that patent trolls bring the majority of patent lawsuits and that they cost U.S. businesses $29 billion a year in direct costs.
At a minimum, the fact that patent lawsuit filings actually decreased in 2014, including a substantial decrease in lawsuits brought by patent licensing companies, calls into question much of the rhetoric surrounding the need for further patent “reform” following passage of the America Invents Act (AIA) in 2011.
According to the letter, “those bent on attacking ‘trolls’ have engendered an alarmist reaction that threatens to gut the patent system as it existed in the Twentieth Century, a period of tremendous innovation and economic growth.” Instead of targeted reforms, many of the broad changes under consideration raise serious concerns about potential unintended consequences for American economic growth.
It is even more alarming that these wide-ranging proposals are driven by unreliable studies and data. “We are very concerned that reliance on flawed data will lead to legislation that goes well beyond what is needed to curb abusive litigation practices, causing unintended negative consequences for inventors, small businesses, and emerging entrepreneurs,” the letter states.
The main takeaway: before enacting patent legislation, Congress should demand reliable data on the state of the American patent system and should proceed with caution to ensure balanced, targeted legislation.
The letter is available here.
The 40 signatories included five CPIP Senior Scholars.
Prof. Adam Mossoff, Op-Ed, Reality Check: Weakening Wireless Technology Patents Hurts Everyone, RCR Wireless (January 28, 2015)
Prof. Mossoff argues that as “the proposal to weaken patent rights on technological standards works its way through the internal processes at IEEE, and as U.S. legal authorities consider whether to approve it or not, it is important to remember that weakened patent rights is in no one’s interests. It undermines the ability of companies to invest billions of dollars in R&D and to bring new innovation (like Wi-Fi) to market. The IEEE should continue to support strong patent rights as it has always done, sustaining the fountain of economic prosperity that is the American high-tech industry.”
Prof. Kristen Osenga, Op-Ed, Congress Should Regulate Behavior, Not Business Models, When Crafting Patent Legislation, The Hill (January 27, 2015)
Prof. Osenga explains how the pejorative term “patent troll” has “led to the condemnation of individual companies and the denunciation of entire business models, making discussions about patent legislation sound more like a witch hunt than an informed debate. As our nation considers again tinkering with the patent system – a system that drives innovation and places us atop the global economy – we should be making decisions based on facts, not fairy tales….”
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.
Prof. Richard Epstein highlights CPIP Policy Brief in op-ed, Controlling Chinese Antitrust Abuses Against Foreign Patent Owners Requires Us to Make Sound Decisions At Home, Forbes (January 8, 2015)
Prof. Epstein explains that it “is critical that American legal authorities do not, by their public pronouncements or administrative decisions at home, give aid and comfort to China’s discriminatory treatment of the patented technologies of foreign companies under the AML. The antitrust laws should not be applied so as to single out patents or any other intellectual property rights for special treatment; all property deployed in the marketplace should be treated equally under the competition laws.”
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
CPIP Senior Scholar Adam Mossoff Testifies at House Energy & Commerce Committee Hearing on Patent Demand Letters
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.”
CPIP Senior Scholar Mark Schultz Testifies at House Judiciary Committee Hearing on “The Scope of Copyright Protection”
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.
CPIP Releases Policy Brief on Failure of DMCA Notice and Takedown System
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.
CPIP Senior Scholar Adam Mossoff Testifies at Senate Commerce Committee Hearing on PAEs
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.