In the Spotlight

WIPO-CPIP Summer School
on Intellectual Property

June 3-14, 2019

Antonin Scalia Law School
George Mason University
Arlington, Virginia

The Center for the Protection of Intellectual Property (CPIP) at Antonin Scalia Law School, George Mason University, has partnered with the World Intellectual Property Organization (WIPO) to host the second iteration of the WIPO-CPIP Summer School on Intellectual Property.

This exclusive, two-week summer course will be held in Arlington, Virginia—just minutes from Washington, D.C., one of the world’s key centers of IP law and policymaking. The course provides 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 consists 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 is awarded to participants who successfully complete the course requirements.

To visit our course website, please click here.

CPIP Scholars File Amicus Brief on Fixing Section 101

On April 22, 2019, CPIP scholars filed an amicus brief on behalf of seven patent law professors in Athena Diagnostics Inc. v. Mayo Collaborative Services LLC, a case currently before the Federal Circuit. The brief argues that the Federal Circuit should take the case en banc to correct the continued misapplication of the Mayo-Alice test, which has resulted in many breakthrough inventions and discoveries in the biopharmaceutical sector being struck down as patent-ineligible subject matter.

The brief concludes:

The majority’s analysis of patent eligibility doctrine contradicts Supreme Court decisions in famous and oft-cited cases in which the Court affirmed the patentability of cutting-edge inventions and discoveries. This Court has the decisional authority within the Supreme Court’s Mayo-Alice framework to reestablish reliable and effective patent rights in new and useful diagnostic methods made possible by the biotech revolution. Thus, this Court should grant the petition for rehearing en banc and reverse the panel decision.

To read the amicus brief, please click here.

George Mason Law Review Publishes Papers from CPIP’s Fifth Annual Fall Conference

The papers from our Fifth Annual Fall Conference have been published by the George Mason Law Review. The papers can be found online at the Law Review’s website, or you can download them below:

To read the conference papers, please click here.

Sean O’Connor Joins George Mason University’s Scalia Law Faculty

O’Connor will lead the Center for the Protection of Intellectual Property and expand innovation and entrepreneurship programs.

Professor Sean O’Connor, noted innovation law scholar, is joining George Mason University’s Scalia Law faculty as a tenured full professor and Executive Director of the Center for Protection of Intellectual Property (CPIP). He will continue the renowned CPIP programming while also expanding it into innovation and entrepreneurship law more broadly. O’Connor will lead development of new clinics and the law school’s participation in university-wide multidisciplinary initiatives such as the proposed Institute for Digital InnovAtion (IDIA).

“The time is right for George Mason and Northern Virginia to mature into the world class tech and innovation hub that is already emergent,” says O’Connor. Henry N. Butler, Dean of Scalia Law, embraces the move, “given CPIP’s impact on IP to date, our location, and the arrival of Amazon’s HQ2, the law school is perfectly situated to expand CPIP’s sphere of influence into innovation and entrepreneurship law.”

To read the rest of this announcement, please click here.

Check Out These Recently-Published Papers from CPIP’s Programs and Events

There has been some excellent, recently-published scholarship from the growing network of scholars participating in our various programs and events. Here are five law review articles that you should check out!

Adam MacLeod, Public Rights After Oil States Energy, 95 Notre Dame L. Rev. ___ (2019). In this paper from our Thomas Edison Innovation Fellowship, Professor Adam MacLeod of Faulkner Law discusses the important role of public rights in the Supreme Court’s jurisprudence, particularly in the recent Oil States v. Greene’s Energy case.

Erika F. Lietzan, Access Before Evidence and the Price of FDA’s New Drug Authorities, 53 U. Rich. L. Rev. ___ (2019). In this paper from our Sixth Annual Fall Conference, Professor Erika Lietzan of Mizzou Law looks at the costs and benefits when new drugs are made available before their efficacy and safety has been established.

Daniel R. Cahoy, Patently Uncertain (forthcoming). In this paper from our Thomas Edison Innovation Fellowship, Professor Daniel Cahoy of Penn State draws upon behavioral economics to develop a new framework for assessing the effects of uncertainty for innovators in the patent system.

V.K. Unni, India’s TRIPS-Compliant Patent Decade – The Tumultuous Journey in Search of a Pragmatic Equilibrium, 50 Int’l Rev. Intell. Prop. & Competition L. 161 (2019). In this paper from our Thomas Edison Innovation Fellowship, Professor V.K. Unni of IIM Calcutta surveys patent disputes in India during the first decade of its compliance with TRIPS.

David O. Taylor, Patent Eligibility and Investment (forthcoming). In this paper from our Thomas Edison Innovation Fellowship, Professor David Taylor of SMU Law presents empirical data about the impact of the Supreme Court’s patent-eligibility jurisprudence on investment decisionmaking.

To read these papers and many more on our Scholarship page, please click here.

CPIP Scholars Join Issue Paper Arguing for End to Outdated ASCAP and BMI Consent Decrees

On February 21, 2019, CPIP Senior Scholars Adam Mossoff and Kristen Osenga joined SIU Law’s Mark Schultz and Texas A&M Law’s Saurabh Vishnubhakat in drafting an issue paper entitled De-Regulating the Songwriting Business. The issue paper, which was published by the Federalist Society’s Regulatory Transparency Project, argues that the outdated consent decrees that have governed songwriters since the 1940s should be ended in order to take full advantage of modern technologies for the distribution of music.

The issue paper concludes:

The ASCAP and BMI consent decrees are long outdated relics, imposing heavy and often unpredictable regulation on songwriters and music publishers. DOJ’s 2016 attempt to double down on regulating the industry instead of easing regulation shows just how problematic running an industry by consent decree can be. This over-reaching interpretation would have limited the flexibility of songwriters to determine their own creative and economic destinies.

DOJ’s turn for the better under Assistant Attorney General Delrahim is quite laudable. As he rightly recognized, it’s time to remove the dead hand of 20th Century consent decrees from modern business. In particular, ending the BMI and ASCAP consent decrees would free a well-loved and dynamic industry to meet the challenges and opportunities of the digital marketplace.

To read the issue paper, please click here.

CPIP Scholars File Comments with ITC to Correct Misapplication of Public Interest Factor for Injunctive Relief

On February 7, 2019, CPIP Senior Scholars Kristen Osenga and Adam Mossoff filed comments with the International Trade Commission (ITC) entitled The Use and Abuse of the “Public Interest” in the International Trade Commission and in Article III Courts. The comments were filed as part of the ITC’s investigation into the dispute between Qualcomm and Apple over the importation of infringing smartphones.

In the ITC proceedings, the administrative law judge held that, even though the smartphones contained infringing technology, the public interest precluded the issuance of an exclusion order. The comments note how the recent trend in which injunctive relief is denied upon a finding of infringement harms the innovation economy that depends on stable and effective patent rights. Moreover, the comments survey the historical role of the public interest factor, noting that it was used improperly in this case given the way it has traditionally been used.

To read the comments, please click here.

CPIP Scholars Draft Federalist Society Issue Paper on How the FTC Harms Healthcare Innovation

On January 28, 2019, the Federalist Society’s Regulatory Transparency Project published an issue paper entitled How Antitrust Overreach is Threatening Healthcare Innovation. CPIP Senior Scholars Adam Mossoff and Kristen Osenga joined former Federal Circuit Chief Judge Randall Rader, SIU Law’s Mark Schultz, and Texas A&M Law’s Saurabh Vishnubhakat in drafting the issue paper.

The issue paper, which addresses how the FTC’s antitrust overreach in the healthcare market hinders innovation and harms consumers, concludes:

The FTC’s goals may be well-intentioned, but its intrusion into domains that other, more expert agencies already oversee and comprehensively regulate is troubling. By substituting its own agenda for the business judgment of sophisticated parties in the marketplace, the FTC has overreached its proper role and begun to disrupt the cycle of investment, product development, recoupment, further incremental advancement, and risk management that drives the creation of new drugs that save lives and promote greater public health.

To read the issue paper, please click here.