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

Matthew Jordan, Neil Davey, Maheshkumar P. Joshi, & Raj Davé, Forty Years Since Diamond v. Chakrabarty: Legal Underpinnings and its Impact on the Biotechnology Industry and Society (Ctr. for the Prot. of Intell. Prop. Jan. 2021)

CPIP has published a new policy brief celebrating the fortieth anniversary of the Diamond v. Chakrabarty decision, where the Supreme Court in 1980 held that a genetically modified bacteria was patentable subject matter. The brief, entitled Forty Years Since Diamond v. Chakrabarty: Legal Underpinnings and its Impact on the Biotechnology Industry and Society and written by Matthew Jordan, Neil Davey, Maheshkumar P. Joshi, and Raj Davé, is dedicated to the late Dr. Ananda Chakrabarty, a pioneer in the biotechnology world, who passed away in July 2020. Chakrabarty had a great impact on the biotechnology revolution, ushering in a new era of technological advances that have benefited humankind. Through interviews with Randall Rader, former Chief Judge of the Federal Circuit, and Dr. Chakrabarty himself, as well as case studies on genetically modified seeds, polymerase chain reactions, and monoclonal antibody therapies, the policy brief explores the importance and enduring implications for society of the Chakrabarty decision.

Joanna M. Shepherd, The Legal and Industry Framework of Pharmaceutical Product Hopping and Considerations for Future Legislation (Ctr. for the Prot. of Intell. Prop. Dec. 2020)

In this CPIP policy brief, Joanna Shepherd, Vice Dean and Thomas Simmons Professor of Law at Emory University School of Law, discusses the practice of so-called “product hopping,” where a pharmaceutical company turns its focus to newer versions of its existing drugs. Prof. Shepherd explains that the product hopping phenomenon is incentivized by the legal and industry framework in which pharmaceutical companies operate. She looks at the existing case law on whether the practice violates antitrust law 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.

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

This CPIP policy brief by CPIP Senior Fellow for Innovation Policy Jonathan Barnett 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.

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

In this CPIP policy brief, 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.


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 M. 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)

Matthew Jordan, Neil Davey, Maheshkumar P. Joshi, & Raj Davé, Forty Years Since Diamond v. Chakrabarty: Legal Underpinnings and its Impact on the Biotechnology Industry and Society (Ctr. for the Prot. of Intell. Prop. Jan. 2021)

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)

Joanna M. Shepherd, The Legal and Industry Framework of Pharmaceutical Product Hopping and Considerations for Future Legislation (Ctr. for the Prot. of Intell. Prop. Dec. 2020)

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)