CPIP Roundup – March 19, 2019


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Spotlight on Scholarship

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 Dan 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.


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Registration Now Open for WIPO-CPIP Summer School on Intellectual Property

CPIP has again partnered with the World Intellectual Property Organization (WIPO) to host the second iteration of the WIPO-CPIP Summer School on Intellectual Property on June 3-14, 2019, at Antonin Scalia Law School, George Mason University, in Arlington Virginia. U.S. law students can receive 3 hours of academic credit from Scalia Law!

This exclusive, two-week summer course will be held 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.

For more information, please click here.


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Recent CPIP Programs & Events

On March 3, 2019, the Arts & Entertainment Advocacy Clinic joined the Washington Area Lawyers for the Arts (WALA) to co-host an Intellectual Property Drop-In Clinic at the D.C. Independent Film Festival in Washington, D.C. The Clinic students provided legal information and conducted intake interviews to help artists determine if they might need and qualify for a referral to an attorney offering pro bono or low-fee legal services.

On February 28-March 2, 2019, CPIP hosted the first meeting of the 2019-2020 Thomas Edison Innovation Fellowship in San Diego, California. The meeting, which focused on research methodologies and developing research ideas, featured several days of academic roundtable discussions, as well as presentations by inventors and other representatives from the innovation industries.

On February 7-8, 2019, CPIP hosted a research symposium, Safe Harbors and Private Ordering in the Creative Industries, at Antonin Scalia Law School, George Mason University, in Arlington, Virginia. The symposium brought together scholars, lawyers, and industry professionals to discuss the legal and policy issues surrounding Section 512(i) of the Digital Millennium Copyright Act.

On January 17-18, 2019, CPIP held the final meeting of the 2018-2019 Thomas Edison Innovation Fellowship in Orlando, Florida. At the meeting, the Edison Fellows presented final drafts of their research papers and received valuable feedback from Senior Commentators and other Fellows.


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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 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.”

To read the issue paper, please click here.


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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.


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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.


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Essays & Op-Eds

Kristen Osenga, What Happened to the Public’s Interest in Patent Law?

Erika Lietzan, Changes in the New Orange Book — Or, Too Much Time on My Hands

Vanessa Pierce Rollins, Unverified Theory Continues to Inform FTC’s Policies Toward Patent Owners

Kevin Madigan, Supreme Court Holding on Recoverable Costs Misses the Mark

Devlin Hartline, How the Supreme Court Made it Harder for Copyright Owners to Protect Their Rights—And Why Congress Should Fix It

Chris Katopis & Devlin Hartline, Supreme Court to Assess USPTO’s Controversial Attorneys’ Fees Position

Devlin Hartline, CPIP Scholars Join Comments to FTC on How Antitrust Overreach is Threatening Healthcare Innovation

Erika Lietzan, Patent Term Restoration – Denied!

Devlin Hartline, CPIP’s Sean O’Connor Files Comments with FTC on Consumer and Competition Concerns with Copyright Licensing

Kevin Madigan, Netflix’s Alliance with the MPAA Signals a Shift

Devlin Hartline, CPIP Scholars Join Comment Letter to FTC Supporting Evidence-Based Approach to IP Policymaking

Chris Katopis, U.S. Rise in International IP Index Signals Progress in Ongoing Effort to Restore Faith in the Patent System


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CPIP Scholar Mentions & Speaking Engagements

Jonathan Barnett, Dispatches from the Patent Wars: The High-Stakes Battle Between Qualcomm and Apple, Federalist Society Teleforum

Jonathan Barnett, What it All Boils Down to in FTC vs. Qualcomm, San Diego Union-Tribune

Jonathan Barnett, SEPs Need Injunctions Too, Law360

Jonathan Barnett, Fox Employees on High Alert as Disney Acquisition Looms, CBR

Jonathan Barnett, Anxiety, AWOL Executives and “Bloodshed”: How Disney Is Making 21st Century Fox Disappear, Hollywood Reporter

Devlin Hartline, The ASCAP Daily Brief for March 11, 2019, ASCAP

Chris Katopis, IP Policy and Congress, GW Law IP Writing Seminar

Erika Lietzan, Professor Lietzan Quoted by CBS News on Pharmaceutical Manufacturing Recall, University of Missouri School of Law News

Erika Lietzan, Drugmaker Behind Ibuprofen Recall Has History of FDA Violations, CBS News

Adam Mossoff, The FTC Goes After Qualcomm, Forbes

Adam Mossoff, An Overreaching Patent Office Appeal Board Threatens Innovation and Inventors, Politico

Adam Mossoff, The FTC Joins Huawei on a Misguided Troll Hunt, Wall Street Journal

Adam Mossoff, SEPs Need Injunctions Too, Law360

Adam Mossoff, Supreme Court to Hear Clothing Brand’s ‘Scandalous’ Trademark Case, Washington Times

Adam Mossoff, Did eBay v. MercExchange Go Too Far?, USC Gould Reforming Patent Reform Conference

Adam Mossoff, Cicero Cares What Thomas Jefferson Thought About Patents, Written Description

Kristen Osenga, The Realpolitik of Intellectual Property, 2019 AALS Annual Meeting

Kristen Osenga, Dispatches from the Patent Wars: The High-Stakes Battle Between Qualcomm and Apple, Federalist Society Teleforum

Kristen Osenga, Industry Insiders: Opinions Mixed in Aftermath of Supreme Court Holding in Helsinn, IPWatchdog

Eric Priest, Music in the Digital Age, 3rd Annual Oregon Sports and Entertainment Conference

Ted Sichelman, Did eBay v. MercExchange Go Too Far?, USC Gould Reforming Patent Reform Conference