In the Spotlight

CPIP Expresses Condolences on Passing of Disney’s Richard Bates

CPIP expresses condolences to the family, friends, and colleagues of Richard Bates, long-time head of Disney’s Government Relations team in Washington, D.C., who died suddenly on December 31, 2020. Richard was a consummate professional and knowledgeable advocate for the interests of the creative community. His impact in the policy arena was far-reaching, and he was much respected and warmly regarded by those who had the good fortune to know and work with him over the years. CPIP is grateful for the opportunities we have enjoyed to interact with Richard and his team.

CPIP Applauds Congress on Passing CASE Act and Protecting Lawful Streaming Act

As advocates for individual artists and small businesses in the arts, CPIP is grateful this holiday season for the inclusion of the CASE Act and the Protecting Lawful Streaming Act as part of the end-of-year omnibus and COVID-19 relief package: the Consolidated Appropriations Act, 2021. These measures enjoyed overwhelming support and address longstanding challenges in IP enforcement. While there are many additional obstacles for artists and arts venues to overcome stemming from the pandemic, we are hopeful that these measures, which artists have worked many years to achieve, will be a building block to a more equitable future for independent arts businesses.

Happy Holidays from CPIP!

Professor Joanna Shepherd Explains Pharmaceutical Product Hopping in New CPIP Policy Brief

CPIP has published a new policy brief by Joanna M. Shepherd, Vice Dean and Thomas Simmons Professor of Law at Emory University School of Law. The brief, entitled The Legal and Industry Framework of Pharmaceutical Product Hopping and Considerations for Future Legislation, discusses the practice of so-called “product hopping,” where a pharmaceutical company turns its focus to newer versions of its existing drugs. The newer versions, which may include extended-release formulations, different dosages, and the like, can be protected by new patents if they independently meet the patentability requirements, including novelty, nonobviousness, and utility. However, these newer versions may not be covered by a state’s automatic substitution laws since there are no generics yet available. Those laws only apply when generic versions are on the market.

Prof. Shepherd explains that the product hopping phenomenon is incentivized by the legal and industry framework in which pharmaceutical companies operate. Indeed, the current system allows generic drug companies to free ride on the extensive research, development, approval, and marketing costs borne by the branded drug companies, and the latter are thus motivated to create new and innovative drugs that will further benefit consumers. Despite these benefits, some suggest that we need legislative changes to rein in product hopping, and some even argue that the practice itself violates the antitrust laws. Prof. Shepherd looks at the existing case law on the antitrust issue—a total of two cases at the federal appellate level—to find points of agreement, and she uses that synthesis to suggest considerations for future legislative efforts to balance the needs of consumers and producers. Finally, Prof. Shepherd warns that any legislation aimed at product hopping should be cautious so as not to ultimately harm consumers, reduce innovation, and increase health care spending.

To read the policy brief, please click here.

Arts & Entertainment Advocacy Clinic Virtual Copyright Event on Arts and the Pandemic

On October 27, 2020, Scalia Law’s Arts & Entertainment Advocacy Clinic, under the guidance of CPIP Director of Copyright Research and Policy Sandra Aistars, joined the Washington Area Lawyers for the Arts (WALA) and the Copyright Alliance to co-host a virtual copyright clinic entitled Arts and the Pandemic to discuss copyright law and how local venues and artists are affected by the pandemic.

Arts & Entertainment Advocacy Clinic students worked with individual artists and small businesses to identify legal issues, answer copyright questions, and make referrals to local legal resources. Local band Rock Creek Kings also performed live at the event, and you can watch the video here.

To read our blog post summarizing the event, please click here.

CPIP Hosts Eighth Annual Fall Conference on 5G and the Internet of Things

On October 7-8, 2020, CPIP hosted its Eighth Annual Fall Conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by the Honorable Andrei Iancu, and it was co-hosted by Scalia Law’s National Security Institute (NSI).

This conference addressed fast-emerging intellectual property (IP), antitrust, and technology leadership issues in the 5G and “Internet of Things” innovation ecosystem. Coverage included standard-essential patents (SEPs) along with established and emerging markets on a regional and global basis. Speakers were drawn from the academic, industry, and policymaking communities, with an emphasis on using objective fact-based analysis to explore points of convergence among legal, economic, and geopolitical perspectives on the IP and regulatory infrastructures that underlie these critical industries.

To visit our conference website, please click here.

Terrica Carrington Testifies Before House Judiciary Committee on DMCA

On September 30, 2020, Scalia Law Alumna and Arts & Entertainment Advocacy Clinic Adjunct Professor Terrica Carrington testified at the House Judiciary Committee hearing on Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. 512 After Two Decades.

In both her written and oral testimony, Terrica emphasized how piracy represents one of the greatest threats to the welfare of the creative community, noting that the safe harbors under Section 512 of the Digital Millennium Copyright Act (DMCA) were meant to limit liability for copyright infringement—not to create broad loopholes for online service providers (OSPs) to turn a blind eye to ubiquitous infringement on their systems.

To see the testimony, please click here.

CPIP Welcomes Ken Randall as Next Dean of Scalia Law School

George Mason University has announced that Ken Randall will be the next Dean of Antonin Scalia Law School, beginning on December 1, 2020.

CPIP Executive Director Sean O’Connor welcomed the news: “We couldn’t be happier with the selection of Ken Randall as Dean-Elect. He cares deeply about the continued success of CPIP and is no stranger to innovation and commercialization. He and I have already developed a great working relationship, and CPIP endeavors to support his Deanship in any way we can. We also thank Dean Henry Butler for his outstanding leadership and look forward to working with him as a faculty colleague and Executive Director of the Law & Economics Center.”

The Center for the Protection of Intellectual Property congratulates Dean Randall on his appointment and welcomes him to the Scalia Law family. His rigorous academic mind, strong leadership skills, and expertise in online learning bring together the ideal skill set to take our law school to new heights. We very much look forward to working with him in the near future.

To read our announcement, please click here.

CPIP Congratulates Shira Perlmutter as 14th United States Register of Copyrights

On September 21, 2020, Librarian of Congress Dr. Carla Hayden announced that she has appointed Shira Perlmutter Register of Copyrights and Director of the United States Copyright Office.

As we celebrate the 150th anniversary of the Copyright Office, the Center for the Protection of Intellectual Property congratulates incoming Register Perlmutter on her appointment as Register of Copyrights and Director of the United States Copyright Office; thanks Librarian of Congress Dr. Hayden for conducting a thoughtful and thorough search; and thanks Acting Register Maria Strong for her dedicated service not only meeting the needs of users of the office, but also bringing to fruition numerous major initiatives, particularly during these challenging times.

To read our announcement, please click here.

Professor Ross E. Davies on the “Ebb and Flow in Safe Harbors”

CPIP has published a new policy brief by Professor Ross E. Davies entitled Ebb and Flow in Safe Harbors: Some Exemplary Experiences Under One Old Statute and One New. Prof. Davies teaches administrative law, civil procedure, comparative criminal law, contracts, employment discrimination, legal history, legal profession, and torts at George Mason University Antonin Scalia Law School in Arlington, Virginia, and the policy brief is the product of our two Safe Harbors and Private Ordering in the Creative Industries research symposia that were held in 2019.

In the policy brief, Prof. Davies compares and contrasts two seemingly unrelated statutory provisions that are often referred to as “safe harbors”—despite that term not appearing in either statute: the National Labor Relations Act (NLRA) as codified in Title 29, and the Online Copyright Infringement Liability Limitation Act (OCILLA)—otherwise known as Title II of the Digital Millennium Copyright Act (DMCA)—as codified in Title 17.

To read the policy brief, please click here.

CPIP Hosts Academic Roundtable on Measuring the Value of Patent Licensing

On September 17, 2020, CPIP hosted an academic roundtable entitled Measuring the Value of Patent Licensing online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The roundtable, which was moderated by CPIP Senior Fellow for Innovation Policy Jonathan Barnett, included leading scholars, economists, and industry representatives.

The sessions focused on the existing methodologies developed to measure IP transactions, the insights achieved so far using those methodologies, and the possibilities for developing more precise methodologies to measure licensing and related transactional activities in the IP marketplace, both domestically and internationally. Additionally, attendees discussed possible regulatory interventions or industry arrangements that could improve transparency in IP asset markets.

The sessions also focused on the mechanics of IP licensing and transactional markets, including discussion of both theoretical and empirical understandings of how IP rights support those markets, how IP transactions generate social value, and the extent to which existing IP legal regimes may impede IP markets, and technological developments that may improve the transparency and liquidity of IP asset markets.

New Da Vinci Article on the Harmonization of Copyright and Communications Law

The Richmond Journal of Law and Technology (JOLT) has just published a new article by Professor Stuart N. Brotman, the inaugural Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville.

The article, Intersecting Points in Parallel Lines: Toward Better Harmonization of Copyright Law and Communications Law Through Statutory and Institutional Reform, was supported by a Leonardo da Vinci Fellowship Research Grant from CPIP and the research assistance of recent Scalia Law graduate Samantha J. Levin. The article traverses the history and development of copyright and communications law, which have historically followed separate paths, and offers potential ways that they can be harmonized to match the current realities of the media marketplace.

To read the article, please click here.

The Evolving Music Ecosystem Conference with Rosanne Cash

On September 9-11, 2020, CPIP hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.

This unique conference continued a dialogue on music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.

To visit our conference website, please click here.

Mark Schultz: Weaker Patent Protection Leads to Less Venture Capital Investment

Venture capitalists pouring money into a small startup has become a sort of new American Dream for many innovators. The success stories of big American companies starting with nothing more than an idea have pervaded their way into pop culture, inspiring TV shows, movies, and the like. However, CPIP Senior Scholar Mark Schultz has released a new report for USIJ entitled The Importance of an Effective and Reliable Patent System to Investment in Critical Technologies showing that this dream may be harder to attain today due to recent shifts that have weakened the patent system and driven away venture capital investment.

There is some trend in the positive direction, however. Prof. Schultz notes that USPTO Director Andrei Iancu has demonstrated strong support for the role of patents in the economy with several policy changes aimed at strengthening patent protection. It is also of note that many policymakers are realizing the changes have gone too far, and there are now several pending legislative proposals aimed at fixing these issues. These realizations, coupled with Prof. Schultz’s quantitative and qualitative data, paint a clear picture that all but proves a single point: strong patents promote innovation more than weaker patents. In the words of Prof. Schultz: “Society needs its most successful people working on its most compelling problems. The patent system should support such work.”

To read the report, please click here.

Jonathan Barnett on the “License as Tax” Fallacy and the Real-World Benefits of Licensing

“Casual metaphors can have dangerous consequences.” CPIP Senior Fellow for Innovation Policy Jonathan Barnett has a new paper, The ‘License as Tax’ Fallacy, which seeks to undo what he considers to be a dangerous, casual metaphor, namely, that intellectual property is a “state-granted monopoly” and therefore licensing is a “monopolistic tax” on consumers. Instead, Prof. Barnett explains that licensing is a tool that creates value for consumers and producers alike.

The theoretical boogeyman of IP licensing creating monopolistic “taxes” has not held up to the intense scrutiny of the evidence, Prof. Barnett concludes. Any restrictions of IP licensing should be based in evidence and not be a knee-jerk reaction to hypothetical scenarios that have not come to pass, such as in the smartphone industry. There is far more evidence to show that licensing creates value for the market than there is evidence to show it “taxes” the market. And thus, this dangerous, common metaphor of “IP = monopoly” should be put to rest.

To read the paper, please click here.

CPIP’s Sandra Aistars Joins Artomatic Panel on Copyright Protection for Visual Artists

As part of its ongoing series about the copyright licensing process, Artomatic hosted a virtual panel for visual artists to discuss how to protect their creative works. The panel focused on explaining key concepts of copyright law pertinent to visual artists and sharing resources that they can use to learn more about the basics of copyright protection. It also touched on common pitfalls among visual artists when it comes to protecting their creative works, including those that befall joint authors, and common misconceptions about fair use.

The panelists included CPIP Director of Copyright Research and Policy Sandra Aistars and Jaylen Johnson, Attorney Advisor at the U.S. Copyright Office, and it was moderated by Kim Tignor, Executive Director at the Institute for Intellectual Property & Social Justice.

To read our post summarizing the event, please click here.

New CPIP Policy Brief: The Long Shadow of the Blackberry Shutdown That Wasn’t

On July 28, 2020, CPIP published a new policy brief by CPIP Senior Fellow for Innovation Policy Jonathan Barnett entitled The Long Shadow of the Blackberry Shutdown That Wasn’t. The policy brief looks at how the Blackberry litigation and the “patent troll” narrative ultimately contributed to the Supreme Court’s 2006 decision in eBay v. MercExchange that limited the availability of injunctive relief for successful patentees.

Professor Barnett then examines the problematic legacy of the post-eBay case law, which significantly shifted the legal infrastructure supporting the U.S. innovation markets. In particular, he explains how this shift has led to opportunistic infringement that favors downstream incumbents with the resources to fund extensive litigation at the expense of upstream innovators—a dynamic that is exemplified in the recent litigation between Sonos and Google.

To read the policy brief, please click here.

New Paper Looks at “Ill-Advised Legislative Proposals” to Address Pharmaceutical “Evergreening”

Many believe that drug prices in the U.S. are unnecessarily high because the pharmaceutical industry is exploiting legal loopholes and acquiring dubious patents to extend protection and delay generics from entering the market (so-called “evergreening” behavior by drug innovators). However, CPIP Senior Scholar Chris Holman of the University of Missouri-Kansas City School of Law has published a new paper arguing that these recent concerns regarding patents and drug prices are unfounded.

The paper, entitled Congress Should Decline Ill-Advised Legislative Proposals Aimed at Evergreening of Pharmaceutical Patent Protection and published in the University of the Pacific Law Review, further challenges recent legislative proposals aimed at pharmaceutical evergreening, finding that they “are largely misguided, and, if enacted, would be likely to cause more harm than good by discouraging innovation in pharmaceuticals without effectively addressing the core concern.”

To read the paper, please click here.

(Patented) Life Begins at Forty: CPIP Celebrates the Ongoing Legacy of Diamond v. Chakrabarty

It’s been forty years since the Supreme Court ruled in favor of patentability for a GE scientist and the oil-eating bacterium he’d created, greatly expanding the scope of living matter that was eligible to be patented. Previously, patents on living things were limited to botanical inventions such as novel plant varieties, but the Court in Diamond v. Chakrabarty opened the door to genetically modified living matter.

The legacy of Chakrabarty is still going strong. On Wednesday, June 17, 2020, CPIP and the Smithsonian’s Lemelson Center for the Study of Invention and Innovation jointly hosted a panel of experts to discuss the landmark ruling. The panel reflected on how the ruling in Chakrabarty has affected intellectual property and the biotech industry, and some of the issues that leave room for improvement.

To read our post summarizing the event, please click here.

New Paper Explores Possibility of Gold-Plated Patents Beyond the PTAB’s Reach

What if there is a way for a patent applicant to obtain a “gold-plated patent” that is immune to administrative cancellation before the Patent Trial and Appeal Board (PTAB) at the U.S. Patent and Trademark Office (PTO)?

This intriguing notion is the subject of a recent paper by Professor Michael S. Greve of Scalia Law, titled Exceptional, After All and After Oil States: Judicial Review and the Patent System and published in the Winter 2020 edition of the Boston University Journal of Science and Technology Law. Prof. Greve presented an early draft of this paper at the “Perspectives on the PTAB: The New Role of the Administrative State in the Innovation Economy” conference that was co-hosted by CPIP and the Gray Center at Scalia Law.

To read the paper, please click here.

2020 WIPO-CPIP Summer School on Intellectual Property

On June 8-19, 2020, CPIP again partnered with the World Intellectual Property Organization (WIPO) to host the third iteration of the WIPO-CPIP Summer School on Intellectual Property.

This exclusive, two-week summer course was held online from Arlington, Virginia—just minutes from Washington, D.C., one of the world’s key centers of IP law and policymaking. The course provided a unique opportunity for students, professionals, and government officials to work with leading experts to gain a deeper knowledge of IP to advance their careers.

The course consisted of lectures, case studies, simulation exercises, group discussions, and panel discussions on selected IP topics, with an orientation towards the interface between IP and other disciplines. A certificate of participation was awarded to participants who successfully complete the course requirements.

To visit our Summer School website, please click here.

IP Scholars File Comments with OSTP on Public Access to Scholarly Publications

On May 6, 2020, a group of intellectual property scholars filed comments with the Office of Science and Technology Policy (OSTP), asking it to forgo its plans to make all federally-funded scholarly publications free and open to the public upon initial publication. The comments were submitted in response to a notice of Request for Information (RFI) that was published in the Federal Register seeking recommendations “on approaches for ensuring broad public access to the peer-reviewed scholarly publications, data, and code that result from federally funded scientific research.”

While the RFI did not specifically mention intellectual property rights, it is clear that any proposal to provide free access to federally-funded scholarly publications would have significant ramifications for the copyright owners of those works. The comments argue that any such plan to further lessen the exclusive rights of these owners should be rejected as it “ignores and destroys the resource-intensive review, translation, and commercialization processes required to produce and disseminate these manuscripts” and “confuses the so-called public domain with the public sphere or market.”

To read the comments, please click here.

CPIP Welcomes Joshua Kresh as Deputy Director

CPIP is proud to welcome Joshua Kresh to our leadership team! As Deputy Director, Joshua will report to CPIP Executive Director Sean O’Connor while managing and participating in CPIP’s day-to-day operations. Joshua will oversee CPIP’s academic research, policy, and fundraising efforts, working as well on planning and executing CPIP events such as conferences, meetings, fellowships, and roundtables. Joshua will also consult with Professor O’Connor and the other faculty directors to develop CPIP’s long-term academic and policy plans.

“We are thrilled that Joshua is joining us as we expand CPIP further into innovation and international policy. Joshua’s extensive background in IP, as well as in computer science and bioinformatics, position him ideally to strengthen our tech and patent research,” said Professor O’Connor. “We also expect to leverage his policy and outreach work with AIPLA and the Giles Rich American Inn of Court to connect with the new generation of IP lawyers,” he continued.

Before joining CPIP as Deputy Director, Joshua was an Associate with DLA Piper in Washington, D.C., where he practiced patent litigation. He received his law degree with honors from The George Washington University Law School, and he holds master’s and bachelor’s degrees in computer science from Brandeis University. Joshua is the Chair of AIPLA’s New Lawyers Committee and Co-Mentoring Chair of the Giles Rich American Inn of Court, and he is a registered patent attorney with the U.S. Patent and Trademark Office. He previously served on the Intellectual Property Committee for the U.S. Court of Federal Claims Advisory Council.

To read our announcement, please click here.

New CPIP Policy Brief: Jonathan Barnett on the End of Patent Groupthink

In a new CPIP policy brief entitled The End of Patent Groupthink, CPIP Senior Fellow for Innovation Policy Jonathan Barnett highlights some cracks that have emerged in the recent policy consensus that the U.S. patent system is “broken” and it is necessary to “fix” it.

Policymakers have long operated on the basis of mostly unquestioned assumptions about the supposed explosion of low quality patents and the concomitant patent litigation that purportedly threaten the foundation of the innovation ecosystem. These assumptions have led to real-world policy actions that have weakened patent rights. But as Prof. Barnett discusses in the policy brief, that “groupthink” is now eroding as empirical evidence shows that the rhetoric doesn’t quite match up to the reality. This has translated into incremental but significant movements away from the patent-skeptical trajectory that has prevailed at the Supreme Court, the USPTO, and the federal antitrust agencies.

To read the policy brief, please click here.