CPIP Roundup – September 30, 2019


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Greetings from CPIP Executive Director Sean O’Connor

The fall semester is now in full swing at Antonin Scalia Law School, and the CPIP team has been busy this past month with our various programs and events. On September 12-13, we hosted the third meeting of the 2019-2020 Thomas Edison Innovation Fellowship, where the Edison Fellows presented rough drafts of their papers and received valuable feedback. Then, on September 20-21, we co-hosted the 31st Annual Intellectual Property Section Seminar with the IP Section of the Virginia State Bar, which provided practitioners with an in-depth look at recent and upcoming developments in IP law. Finally, we’ve been getting ready for our Seventh Annual Fall Conference, which will take place at Scalia Law this Friday, October 4.

I am thrilled to announce that Erika Lietzan of Mizzou Law has joined CPIP as its new Director of Life Sciences. Prof. Lietzan is a leading expert in the fields of food and drug regulation, intellectual property, and administrative law, and her primary research focus lies at the intersection of IP law and FDA regulation of medical products. We’re very excited to have her join us as a core member of the CPIP team. In addition, I am especially proud of the work of CPIP Director of Copyright Research and Policy Sandra Aistars, who conducted an entertainment law education session and pop-up clinic for filmmakers with the students in her Arts & Entertainment Advocacy Clinic during the DC Shorts Film Festival on September 20.

We at CPIP send you our regards and best wishes for the coming month, and we hope to see you at our Fall Conference this Friday!


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Join Us for CPIP’s Seventh Annual Fall Conference on Friday, October 4!

Online registration closes on Tuesday, October 1, 2019, at noon ET. Onsite registration will be available at the conference. 5 hours Virginia CLE, including 1.5 hours Ethics, available.

On Friday, October 4, 2019, CPIP will host its Seventh Annual Fall Conference at Antonin Scalia Law School in Arlington, Virginia. The theme of this year’s conference is The IP Bridge: Connecting the Lab & Studio, and the event will feature keynote addresses by Professor Robert Merges, UC Berkeley, and Maria Pallante, President & CEO of AAP and former Register of Copyrights.

This unique conference will highlight how IP rights facilitate the creative and innovative processes and preserve the vibrant ecosystems that deliver innovative products and creative works to consumers. In addition to exploring how IP helps to improve and enrich the lives of creators, inventors, and the public, this conference will also discuss how various efforts to impose price controls in the creative and innovation industries threaten established markets and the creation of innovative products and artistic works.

Please click here to register. We look forward to seeing you this Friday!


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Spotlight on Scholarship

Erika Lietzan & Kristina Acri, Distorted Drug Patents, ___ Wash. L. Rev. ___ (forthcoming)

In this forthcoming paper supported by a CPIP Leonardo da Vinci Fellowship Research Grant that will be published in the Washington Law Review, CPIP Director of Life Sciences Erika Lietzan and Professor Kristina Acri of Colorado College investigate whether the patent system provides adequate incentives for innovation in the pharmaceutical industry. Using a large dataset spanning 34 years, they find that longer clinical programs result in shorter effective patent life, even accounting for patent term restoration, which adds to the growing body of literature suggesting that the patent system may be systematically distorting drug research incentives.

Jonathan M. Barnett, Stealth Commoditization: The Misuse of Smartphone Antitrust, CPI Antitrust Chronicle (Sept. 2019)

In this article that was published by Competition Policy International, CPIP Senior Scholar Jonathan Barnett explores how antitrust regulators have implemented policies and taken actions that seek to limit the enforcement and licensing of standard-essential patents in the smartphone industry. Prof. Barnett explains how the real-world evidence does not support the patent holdup theory that underlies these antitrust decisions, and he notes that they in fact promote private interests of downstream producers at the expense of the public interest that the antitrust laws are intended to foster.

Ryan T. Holte & Ted M. Sichelman, Cycles of Obviousness, 105 Iowa L. Rev. ___ (2019)

In this paper that will be published by the Iowa Law Review, CPIP Senior Scholar Ted Sichelman and Judge Ryan Holte of the U.S. Court of Federal Claims conduct the first comprehensive empirical study of district court and Federal Circuit decisions both before and after the Supreme Court’s KSR v. Teleflex opinion. They explain how this recent shift in nonobviousness doctrine is part of an ongoing trend of courts raising and lowering the obviousness threshold based on the prevailing attitudes of judges as to the role of patents in promoting innovation.


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Activities, News, & Events

CPIP Senior Scholar Mark Schultz will join the faculty at the University of Akron School of Law in January 2020 as the Goodyear Tire & Rubber Company Chair in Intellectual Property Law and Director of the Center for Intellectual Property Law & Technology. Prof. Schultz’s research focuses on the law and economics of the global intellectual property system, and as Goodyear Chair, he will serve an important role in advancing critical thinking on IP law within the academic, business, and industry fields. At the IP Center, Prof. Schultz succeeds Judge Ryan Holte, who stepped down from his position to become a judge of the U.S. Court of Federal Claims.

CPIP Senior Scholar Kristen Osenga spoke at the Patent Masters Symposium, which was held in Arlington, Virginia, on September 10-11. Prof. Osenga joined the session entitled Balance, Transparency & Reasonableness: Converging Approaches to SEP Licenses and FRAND Royalties, where she presented her upcoming paper, IEEE IPR Policy Amendments: Strategic Behavior and Feedback Loops, that examines the problems with the IEEE’s 2015 amendments to its IPR policy. In the paper, Prof. Osenga examines the events leading to the amended IPR policy, including the theoretical problems of patent holdup and royalty stacking that supposedly justified it, and then she considers how the aftermath of the policy favors implementers over contributors.