Policy Briefs & Issue Papers

CPIP scholars play an active role in the intellectual property policy debate, writing numerous policy briefs and issue papers about intellectual property rights and the technological, commercial, and creative innovation they facilitate.

Below are some selected highlights.


Recent Highlights

Jonathan M. Barnett, The End of Patent Groupthink (April 2020)

In this 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.

Jonathan M Barnett, The Long Shadow of the Blackberry Shutdown That Wasn’t (July 2020)

In this CPIP 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. Prof. 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.


Policy Briefs & Issue Papers A to Z

Sandra Aistars, Devlin Hartline, & Mark Schultz, Copyright Principles and Priorities to Foster a Creative Digital Marketplace (Ctr. for the Prot. of Intell. Prop. Dec. 2015)

Jonathan M. Barnett, The End of Patent Groupthink (Ctr. for the Prot. of Intell. Prop. Apr. 2020)

Jonathan Barnett, The Long Shadow of the Blackberry Shutdown That Wasn’t (Ctr. for the Prot. of Intell. Prop. July 2020)

Bruce Boyden, The Failure of the DMCA Notice and Takedown System: A Twentieth Century Solution to a Twenty-First Century Problem (Ctr. for the Prot. of Intell. Prop. Dec. 2013)

Ross E. Davies, Ebb and Flow in Safe Harbors: Some Exemplary Experiences Under One Old Statute and One New (Ctr. for the Prot. of Intell. Prop. Sept. 2020)

Greg Dolin, The Costs of Patent “Reform”: The Abuse of the PTO’s Administrative Review Programs (Ctr. for the Prot. of Intell. Prop. Dec. 2014)

Greg Dolin, Resolving the Patent-Antitrust Paradox: Promoting Consumer Welfare Through Innovation (Ctr. for the Prot. of Intell. Prop. May 2013)

Richard A. Epstein, Curbing the Abuses of China’s Anti-Monopoly Law: An Indictment and Reform Agenda (Ctr. for the Prot. of Intell. Prop. Dec. 2014)

Richard A. Epstein, The Dangerous Adventurism of the United States Trade Representative: Lifting The Ban Against Apple Products Unnecessarily Opens A Can Of Worms In Patent Law (Ctr. for the Prot. of Intell. Prop. Aug. 2013)

Devlin Hartline & Matthew Barblan, Debunking the Royalty Stacking Theory: Real-World Evidence From the Mobile Wireless Industry (Ctr. for the Prot. of Intell. Prop. Jan. 2016)

Devlin Hartline & Matthew Barblan, Protecting Authors and Artists by Closing the Streaming Loophole (Ctr. for the Prot. of Intell. Prop. Oct. 2015)

Christopher M. Holman, The Critical Role of Patents in the Development, Commercialization, and Utilization of Innovative Genetic Diagnostic Tests (Ctr. for the Prot. of Intell. Prop. July 2014)

Christopher M. Holman, An Unwise Move to Discriminate Against Pharmaceutical Patents: Responding to the UN’s Guidelines for Pharmaceutical Patent Examination (Ctr. for the Prot. of Intell. Prop. June 2018)

Erika Lietzan, Adam Mossoff, Kristen Osenga, et al., Crippling the Innovation Economy: Regulatory Overreach at the Patent Office (Federalist Soc’y Aug. 2017)

Keith Mallinson, Busting Smartphone Patent Licensing Myths (Ctr. for the Prot. of Intell. Prop. Sept. 2015)

Amanda Maxham, The Gene Revolution (Ctr. for the Prot. of Intell. Prop. Nov. 2015)

Adam Mossoff, A Brief History of Software Patents (And Why They’re Valid) (Ctr. for the Prot. of Intell. Prop. Sept. 2013)

Adam Mossoff, Kristen Osenga, Mark Schultz, et al., Creativity and Innovation Unchained: Why Copyright Law Must be Updated for the Digital Age by Simplifying It (Federalist Soc’y Oct. 2017)

Adam Mossoff, Kristen Osenga, Mark Schultz, et al., De-Regulating the Songwriting Business (Federalist Soc’y Feb. 2019)

Adam Mossoff, Kristen Osenga, Mark Schultz et al., How Antitrust Overreach is Threatening Healthcare Innovation (Federalist Soc’y Jan. 2019)

Adam Mossoff, Kristen Osenga, Mark Schultz, et al., Will Overzealous Regulators Make Your Smartphone Stupid? (Federalist Soc’y Dec. 2018)

Sean M. O’Connor, The Internet Does Not Reset the Copyright-Free Speech Balance (Ctr. for the Prot. of Intell. Prop. Nov. 2013)

Kristen Osenga et al., Putting the Public Back In “Public Interest” in Patent Law (Federalist Soc’y Jan. 2020)

Kristen Osenga, Saving Functional Claiming: The Mismatch of § 112 Reform in the § 101 Reform Debate (Hudson Inst. Jan. 2020)

Mark Schultz, Stephen Ezell, & David Lund (eds.), Innovate4Health: How Innovators Are Solving Global Health Challenges (Ctr. for the Prot. of Intell. Prop. Apr. 2018)

Mark Schultz & Kevin Madigan, The Long Wait for Innovation: The Global Patent Pendency Problem (Ctr. for the Prot. of Intell. Prop. Oct. 2016)

Saurabh Vishnubhakat, The Commercial Value of Software Patents in the High-Tech Industry (Ctr. for the Prot. of Intell. Prop. May 2015)

Bhamati Viswanathan & Adam Mossoff, Open-Access Mandates and the Seductively False Promise of “Free” (Ctr. for the Prot. of Intell. Prop. Apr. 2017)

John F. Witherspoon, A Tribute to Judge Giles S. Rich (Ctr. for the Prot. of Intell. Prop. Apr. 2017)