Monday, July 16, 2018

What do Generic Drug Patent Settlements Say about Patent Quality?

An interesting study about Orange Book patents challenged both under Hatch-Waxman and Inter Partes Review caught my eye this week, but perhaps not for the ordinary reasons. One of the hot topics in drug patent challenges today is reverse payments: when the patentee pays the generic to stop a challenge. The Supreme Court has ruled that these payments can constitute antitrust violations. Though the drug companies give reasons, I'll admit that I've always been skeptical of these types of payments.

One of the key questions is whether the patent was going to survive. Most seem to assume that if a company pays to settle, then the patent was likely going to be invalidated. That's where the draft, Maintaining the Balance: An Empirical Study on Inter Partes Review Outcomes of Orange Book-Listed Drug Patents and its Effect on Hatch-Waxman Litigation, by Tulip Mahaseth (a recent Northwestern Law grad) comes in. Here is the abstract from SSRN:
The Hatch-Waxman Act intended to strike a delicate balance between encouraging pioneer drug innovation and promoting market entry of affordable generic versions of pioneer drugs by providing a streamlined pathway to challenge validity of Orange Book patents in federal district courts. In 2012, the America Invents Act introduced Inter Partes Review (IPR) proceedings which provide a faster, cheaper pathway to challenge Orange Book patents than Hatch-Waxman district court litigation. IPRs also have a lower evidentiary burden of proof and broader claim construction standard, which should make it easier, in theory, to obtain patent invalidation in IPRs as compared to Hatch-Waxman litigation. This empirical study on IPR outcomes of Orange Book patents in the past six years shows that both generic manufacturers and patent owners obtain more favorable final decisions in IPRs as compared to their Hatch-Waxman litigation outcomes because the rate of settlement in IPRs is much lower than in Hatch-Waxman litigation. Moreover, generic manufacturers do not appear to be targeting Orange Book patents in IPRs during their drug exclusivity period. Only 2 out of more than 400 IPRs against Orange Book patents were filed by generic petitioners during the patents’ New Chemical Entity exclusivity period. About 90% of the 230 Orange Book patents challenged in IPR proceedings were also challenged in Hatch-Waxman litigation. It is likely that generic manufacturers are not deterred from Hatch-Waxman litigation because of the lucrative 180-day exclusivity period, which gives the first generic filer 180 days to exclusively market their generic version without competition from other generics when the Orange Book drug patent is successfully invalidated in a subsequent district court proceeding. Therefore, IPR proceedings do not appear to be disrupting the delicate balance sought by the Hatch-Waxman Act. Instead, the IPR process has provided generic manufacturers a dual track option for challenging Orange Book patents by initiating Hatch-Waxman litigation in district courts and also pursuing patent invalidity in IPRs before the Patent Trial and Appeal Board, which has reduced rate of settlements resulting in more patents being upheld and invalidated.
There's a lot of great data in this paper, comparing Orange Book IPRs with non-Orange Book IPRs, including comparison of win rates and settlement rates.

But I want to focus on one seemingly minor point: as the number of IPRs has increased, the rate of settlement has decreased. And, more important, the decreasing rate of settlement has led to more invalidation and more affirmance of patents.

This result gives a nice window into how we might view settlements. Traditional Priest-Klein analysis says that this is exactly what we should see - that the previously settled cases were 50/50. But proving this is harder, and this data set would allow for a nice differences-in-differences analysis in future work.

Additionally, a split among outcomes implies that the settlements were not necessarily because the patentee believed the patent was at risk.  If anti-competitive settlements were ruling the day, I would have predicted that most of the (recent) non-settlements would have resulted in patent invalidation. Then again, it is possible that a 50% chance was risky enough to merit a reverse payment settlement in the past. Regardless of how one comes out on this issue, this study provides some helpful details for the argument.

Tuesday, July 10, 2018

How did TC Heartland Affect Firm Value?

In Recalibrating Patent Venue, Colleen Chien and I did a nationwide study of forum shopping in patent cases (shocker - everybody did it, and not just in Texas), and predicted that many patent cases would shift from the Eastern District to the District of Delaware. And, lo, it has come to pass. Delaware is super busy. This has been good for us at Villanova (only 30 miles away from the court), as our students are getting some great patent experience in externships and internships.

But how much did firms value not being sued in Texas? The TC Heartland case is a clear shock event, so an event study can measure this. In Will Delaware Be Different? An Empirical Study of TC Heartland and the Shift to Defendant Choice of Venue, Ofer Eldar (Duke Law) and Neel Sukhatme (Georgetown Law) examine this question. The article is forthcoming in Cornell Law Review and a draft is on SSRN. Here is the abstract:
Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, such as enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.
The Supreme Court’s recent decision in TC Heartland v. Kraft Foods illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically measure the impact of this shift using an event study, which measures how the stock market reacted to the decision. We find that likely targets of “patent trolls”— entities that own and assert patented inventions but do not otherwise use them—saw their company valuations increase the most due to TC Heartland. This effect is particularly pronounced for Delaware-incorporated firms. Our results match litigation trends since TC Heartland, as new cases have dramatically shifted to the District of Delaware from the Eastern District of Texas, previously the most popular venue for infringement actions.
Why do investors believe Delaware will do better than Texas in curbing patent troll litigation? Unlike Texas, Delaware’s economy depends on attracting large businesses that pay high incorporation fees; it is thus less likely to encourage disruptive litigation and jeopardize its privileged position in corporate law. More broadly, we explain why giving defendants more control over venue can counterbalance judges’ incentives to increase their influence by encouraging excessive litigation. Drawing on Delaware’s approach to corporate litigation and bankruptcy proceedings, we argue that Delaware will compete for patent litigation through an expert judiciary and well- developed case law that balances both patentee and defendant interests.
As I discuss below, I have a like/dislike reaction to this paper.

Monday, June 25, 2018

The False Hope of WesternGeco

The Supreme Court issued its opinion in WesternGeco last week. The holding (7-2) was relatively straightforward: if an infringer exports a component in violation of 35 USC 271(f)(2) (that is, the component has no substantial noninfringing use), then the presumption of extraterritoriality will not bar damages that occur overseas. And that's about all it ruled. It left harder questions, like proximate cause, for another day.

I spent the end of the week and weekend reading commentary on the case (and tussling a bit on Facebook and Twitter). A couple blog posts worth checking out are Tim Holbrook's and Tom Cotter's. I had just a few thoughts to add.

Monday, June 18, 2018

Evidence on Patent Disclosure via Depository Libraries

When I first started practice, the place to go for patents was the Patent Depository Library at the Sunnyvale Public Library. Not only did they have copies of all the patents, they had other disclosures, like the IBM Technical Disclosure series. For those who wonder whether people actually read patents, I can attest that I never went to that library and found it empty. Many people, mostly individual inventors who did not want to pay for Delphion or some other electronic service, went there to look at the prior art. Sadly, the library ceased to be at the end of 2017. Widespread free availability on the Internet, plus a new USPTO center in San Jose siphoned off all the traffic.

Rather than rely on my anecdotal evidence, a new NBER paper examines the role of Patent Depository Libraries as evidence of patent disclosure. Jeffrey Furman (Boston U. Strategy & Policy Dept), Markus Nagler, and Martin Watzinger (both of Ludwig Maximillian U. in Munich) have posted Disclosure and Subsequent Innovation: Evidence from the Patent Depository Library Program to NBER's website (sorry, it's a paywall unless you've got .gov or .edu rights). The abstract is here:
How important is information disclosure through patents for subsequent innovation? Although disclosure is regarded as essential to the functioning of the patent system, legal scholars have expressed considerable skepticism about its value in practice. To adjudicate this issue, we examine the expansion of the USPTO Patent and Trademark Depository Library system between 1975 to 1997. Whereas the exclusion rights associated with patents are national in scope, the opening of these patent libraries during the pre-Internet era yielded regional variation in the costs to access the technical information (prior art) disclosed in patent documents. We find that after a patent library opens, local patenting increases by 17% relative to control regions that have Federal Depository Libraries. A number of additional analyses suggest that the disclosure of technical information in the patent documents is the mechanism underlying this boost in patenting: the response to patent libraries is significant and of important magnitude among young companies, library opening induces local inventors to cite more geographically distant and more technologically diverse prior art, and the library boost ceases to be present after the introduction of the Internet. We find that library opening is also associated with an increase in local business formation and job creation, which suggests that the impact of libraries is not limited to patenting outcomes. Taken together, our analyses provide evidence that the information disclosed in patent prior art plays an important role in supporting cumulative innovation.
 The crux of the study is the match to other, similar areas with Federal Depository (but not patent) Libraries. The authors acknowledge that the opening of a patent library might well be a leading indicator of expected future patenting, but the authors discount this by arguing that the Patent Libraries would have had to somehow predict the exact year of increased patenting, and then apply in advance of that date and get approved just in time. The odds of this seem low, especially when the results are localized to within 15 miles of the library (and no further).

The first core finding, that patenting increased, is ambiguous normatively. The authors discuss enhanced innovation, but equally likely alternatives are that people just got excited about patenting or that innovation already occurring was more easily patented. That said, they find the same quality, which implies that the patenting wasn't simply frivolous.

The second finding is more important: that the types of citations and disclosures changed (and that those changes disappeared when patents were more readily available on the Internet). This finding implies that somebody was reading these patents. The question is who. A followup study looking at how the makeup of inventorship changed would be interesting. Were the additional grants solo inventors or large companies? Who used these libraries?

Even without answering this question, this study was both useful and interesting, as well as a bit nostalgic.

Monday, June 11, 2018

Measuring Patent Thickets

Those interested in the patent system have long complained of patent thickets as a barrier to efficient production of new products and services. The more patents in an area, the argument goes, the harder it is to enter. There are several studies that attempt to measure the effect of patent thickets, with some studies arguing that thickets can ease private ordering. I'd like to briefly point out another (new) one. Charles deGrazia (U. London, Royal Holloway College), Jesse Frumkin, Nicholas Pairolero (both of USPTO) have posted a new draft on SSRN, called Embracing Technological Similarity for the Measurement of Complexity and Patent Thickets. Here is the abstract:
Clear and well-defi ned patent rights can incentivize innovation by granting monopoly rights to the inventor for a limited period of time in exchange for public disclosure of the invention. However, when a product draws from intellectual property held across multiple firms (including fragmented intellectual property or patent thickets), contracting failures may lead to suboptimal economic outcomes (Shapiro 2000). Researchers have developed several measures to gauge the extent and impact of patent thickets. This paper contributes to that literature by proposing a new measure of patent thickets that incorporates patent claim similarity to more precisely identify technological similarity, which is shown to increase the information contained in the measurement of patent thickets. Further, the measure is universally computable for all patent systems. These advantages will enable more accurate measurement and allow for novel economic research on technological complexity, fragmentation in intellectual property, and patent thickets within and across all patent jurisdictions.
 The authors use natural language processing to determine overlap in patent claims (and just the claims, arguing that's where the thicket lies) for both backward and forward citations in "triads" - patents that all cite each other. Using this methodology, they compare their results to other attempts to quantify complexity and find greater overlap in more complex technologies - a sign that their method is more accurate. Finally, they validate their results by regressing thickets against examination characteristics, showing that the examination factors more likely to come from thickets (e.g. pendency) are correlated with greater thickets.

This is an interesting study. The use of citations (versus technological class) will always be a limitation because not every patent in a thicket winds up being cited by others. However, the method used here (using forward and backward citations) is better than the alternative, which is using only blocking prior art.

The real question is what to do with all this information. Can it be applied beyond mere study of which areas have thickets? I suppose it could be helpful for portfolio purchases, and maybe to help decisions about whether to enter into a new technology.

Wednesday, June 6, 2018

A Couple Thoughts on Apple v. Samsung (part ?100?)

I've done a few interviews about the latest Apple v. Samsung design patent jury verdict, but journalistic space means I only get a couple sentences in. So, I thought I would lay out a couple points I see as important. We'll see if they hold up as predictions.

There's been a lot written about the case, so I won't rehash the epic story. Here's the short version. The design patent law affords the winning plaintiff all of the profits on the infringing article of manufacture. The Supreme Court ruled (reversing about 100 years of opposite practice) that the article of manufacture could be less than the entire accused device for sale. Because the original jury instructions did not consider this, the Court remanded for a determination of what the infringing article of manufacture was in this case (the design patents covered the shape of the phone and the default screen). The Federal Circuit remanded, and the District Court decided that, yes, in fact, the original jury instructions were defective and ordered a retrial of damages.

The District Court adopted the Solicitor General's suggested test to determine what the article of manufacture was, determined that under that test it was a disputed fact question, and sent it to the jury. Apple asked for $1 billion. Samsung asked for $28 million. The jury awarded $533 million, which is more than $100 million more than the damages were before the Supreme Court ruled.

After the trial, one or more jurors stated that the entire phone was the article of manufacture because you can't get the screen without the rest of the phone. I suppose that the half a billion is deducting expenses that Apple didn't want to deduct.

So, here are my points:

Tuesday, May 29, 2018

New Ways to Determine Patent Novelty

Jonathan Ashtor (now at Paul, Weiss) has completed a few quality empirical studies in the past. His new foray is a new and creative way to determine novelty. It's on SSRN, and the abstract is here:
I construct a measure of patent novelty based on linguistic analysis of claim text. Specifically, I employ advanced computational linguistic techniques to analyze the claims of all U.S. patents issued from 1976-2014, nearly 5 million patents in total. I use the resulting model to measure the similarity of each patented invention to all others in its technology-temporal cohort. Then, I validate the resulting measure using multiple established proxies for novelty, as well as actual USPTO Office Action rejections on grounds of lack of novelty or obviousness. I also analyze a set of pioneering patents and find that they have substantially and significantly higher novelty measures than other patents.
Using this measure, I study the relationship of novelty to patent value and cumulative innovation. I find significant correlations between novelty and patent value, as measured by returns to firm innovation and stock market responses to patent issuance. I also find strong correlations between novelty and cumulative innovation, as measured by forward citations. Furthermore, I find that patents of greater novelty give rise to more important citations, as they are more frequently cited in Office Action rejections of future patents for lack of novelty or obviousness. I also investigate how novelty relates to the USPTO examination process. In particular, I find that novelty is an inherent feature of a patented invention, which can be measured based on the claim text of either an issued patent or an early-stage patent application.
Next, I use this measure to analyze the characteristics of novel patents. I find that novelty is an effective dimension along which to stratify patents, as key patent characteristics vary significantly across the distribution of novelty measures. Moreover, novel patents are closely linked to basic scientific research, as measured by public grant funding and citations to non-patent scientific literature.
Finally, I use this measure to observe trends in novelty over a forty-year timespan of American innovation. This reveals a noticeable, albeit slight, trend in novelty in certain technology fields in recent years, which corresponds to technological maturation in those sectors.
 I'm skeptical of measures of patent quality by claim language only, but I like how he has used office actions to validate the measure. I think people will have to study this to see how it holds up, but I think it's an interesting and creative first step toward objectively judging quality.

Thursday, May 24, 2018

Brian Soucek on Aesthetic Judgment in Law

As noted in my last post, one of the most quoted lines in copyright law is from Justice Holmes's 1903 opinion in Bleistein: "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations." This aesthetic neutrality principle has found purchase far beyond copyright law. But in a compelling new article, Aesthetic Judgment in Law, Professor Brian Soucek challenges this dogma: "Almost no one thinks the government should decide what counts as art or what has aesthetic value. But the government often does so, and often, it should." Soucek's article may have flown under the radar for most IP scholars because he does not typically focus on copyright law, but it is well worth a look.

Tuesday, May 22, 2018

Examining the Role of Patents in Firm Financing

Just this morning, an interesting new literature review came to my mailbox via SSRN. In Is There a Role for Patents in the Financing of New Innovative Firms?, Bronwyn Hall (Berkeley economics) provides an extremely thorough, extremely helpful literature review on the subject. It's on SSRN, and the abstract is here:
It is argued by many that one of the benefits of the patent system is that it creates a property right to invention that enables firms to obtain financing for the development of that invention. In this paper, I review the reasons why ownership of knowledge assets might be useful in attracting finance and then survey the empirical evidence on patent ownership and its impact on the ability of firms to obtain further financing at different stages of their development, both starting up and after becoming established. Studies that attempt to separately identify the role of patent rights and the underlying quality of the associated innovation(s) will be emphasized, although these are rather rare.
This paper caught my eye for a few reasons.

Sunday, May 20, 2018

Barton Beebe on Bleistein

Barton Beebe’s recent article, Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law, was already highlighted on this blog by Shyamkrishna Balganesh, but I wanted to add a few thoughts of my own because I really enjoyed reading it—it is a richly layered dive into the intellectual history of U.S. copyright law, and a wonderful piece to savor on a weekend.

In one sense, this is an article about one case’s role in U.S. copyright law, but it uses that case to tackle a fundamental question of copyright theory: what does it mean “to promote the Progress”? Beebe’s goal is not just to correct longstanding misunderstandings of Bleistein; as I understand it, his real point is that we can and should “assess[] aesthetic progress according to the simple propositions that aesthetic labor in itself is its own reward and that the facilitation of more such labor represents progress.” He thinks Justice Holmes’s invocation of “personality” in Bleistein represents a normatively attractive “third way” between judges assessing aesthetic merit and simply leaving this judgment to the market—that aesthetic progress is shown “by the mere fact that someone was willing to make the work, either for sale or otherwise, and that in making it, someone had invested one’s personality in the work.”

This personality-centered view of copyright seems similar to the Hegelian personality theory that was drawn into IP by Peggy Radin and elaborated by Justin Hughes, though at times it seems more like Lockean theories based on the author’s labor. I think he could have done more to explain how his theory relates to this prior literature, and also how it’s different from a utilitarian theory that recognizes the value creators get from creating (à la Jeanne Fromer’s Expressive Incentives). In any case, I think Beebe’s take is interesting, particularly with the connection he draws to John Dewey’s American pragmatist vision of aesthetic progress.

Wednesday, May 16, 2018

Mark McKenna: Trademark Counterfeiting And The Problem Of Inevitable Creep

One of my favorite events at Akron Law this past school year was hearing Professor Mark McKenna deliver the Oldham Lecture on his fascinating paper, Criminal Trademark Enforcement And The Problem Of Inevitable Creep.  The completed article, forthcoming in the Akron Law Review, is now available on SSRN.

The story, in Mckenna's telling, is simple. There is a criminal remedy for trademark "counterfeiting" because, most people would agree, using an identical trademark for goods or services that are identical to the trademark owner's is an economically and morally worse act than ordinary trademark infringement. A modern-day example of this atrocious crime is the company that has been hawking dysfunctional "Philips Sonicare" toothbrush replacement heads on Amazon.com. Consumers buy them thinking they are the real thing, and are sorely disappointed when the brush heads do not work. But to deserve the classification as criminal, as a legal matter, the act of counterfeiting must be proven "beyond a reasonable doubt" to fit within the exact text of the relevant statute, the Trademark Counterfeiting Act. According to McKenna, courts have veered from the statutory text, and are instead expanding criminal counterfeiting beyond Congressional authorization. Thus, the article's reference in its title to "inevitable creep."

There are parts of this well-done article with which people are likely to agree, and other parts with which people are likely to strongly disagree.

Tuesday, May 15, 2018

A Focus on Innovators Instead of Innovations

I noticed this week that my sometimes co-author Colleen Chien (Santa Clara) has posted the abstract for a new paper called Innovators on SSRN:
This Article argues for a shift in how we view and use the patent system, to a way of understanding and cultivating innovators that patent, not just patented innovation, for three reasons. First, who is innovating and where has relevance to a myriad of current social and policy debates, including the participation of women and minorities in innovation, high-skilled immigration, and national competitiveness. Second, though largely overlooked by academics, America’s patent system has long been innovator-, not only innovation-driven, and scholarly engagement can improve the quality of relevant policymaking. Third, the application of new computational tools to open patent datasets makes it possible to more easily approximate and track salient details about innovators that patent - including the geography and settings in which they innovate and the personal demographic traits of innovators - enabling the tailoring and tracking of impacts of interventions on disparate groups of innovators. This Article details why and how to do so by applying novel empirical methods to profiling patentees, revealing broad shifts over the past four decades, and demonstrating—through three mini-case studies pertaining to diversity in the technology sector, the promotion of small and individual inventors, and innovation in medical diagnostic technologies—how improving our understanding of innovators can improve our promotion of innovation.
A draft isn't available yet, but hopefully one will be soon. My thoughts on this abstract, though, are "hear, hear!" I think that too little attention has been paid to the people who innovate. There is, to be sure, a rich history of historians and economic historians who have focused on these points. Zorina Khan, Naomi Lamoreaux, and Ken Sokoloff (z''l) come to mind. In law, Adam Mossoff has provided several case studies and Chris Beauchamp has done outstanding historical work highlighting innovators in their time. Mark Lemley leveraged some historical work in an article about simultaneous inventing, and others have looked at those same innovators to tell competing stories.

But much of this work is historical. Of late, as the abstract notes, it's all about the what: What inventions? What classes? What litigation? How many claims? I think people clamor for stories about innovators; I believe my most downloaded (by far) SSRN paper, Patent Troll Myths, resonated because it looked hard at the innovators - individuals to small entities to large companies. Dan Burk looks at innovators (but without data) in Do Patents Have Gender? 

I'm sure there are examples I'm not thinking of, but more data and analysis in this area would be welcome. Patents exist in service to their inventors, and so it makes sense to understand who those are to better understand whether patents are achieving their goals...or even what the goals are.

Tuesday, May 8, 2018

When Should Actors Get Copyrights in their Performances?

In Garcia v. Google, the en banc Ninth Circuit ruled that actors can basically never obtain a copyright in their performances. I was one of, say, ten people troubled by this decision. My IP academic colleagues will surely recall (too) long debates on the listserv on this issue. It turns out that another of the ten is Justin Hughes (Loyola LA), who has now written an article exploring when and why actors might reasonably claim copyright in a performance. The article, called Actors as Authors in American Copyright Law, is on SSRN and is forthcoming in the Connecticut Law Review. The abstract is here:
Among the different kinds of works eligible for copyright, audiovisual works are arguably the most complex, often involving scores of contributors – screenwriters, directors, actors, cinematographers, producers, set designers, costume designers, lighting technicians, etc. Some countries expressly recognize which categories of these contributors are entitled to legal protection, whether copyright, ‘neighboring rights,’ or statutory remuneration. But American copyright law does not. Given that the complex relationship among these creative contributors is usually governed by contract, there is – for such a large economic sector – relatively little case law on issues of authorship in audiovisual works. This is especially true on the question of dramatic performers as authors of audiovisual works.
This Article provides the first in-depth exploration of whether, when, and how actors are authors under American copyright law. After describing how case law, government views, and scholarly commentary support the conclusion that actors are authors, the Article turns to the strange saga of the Ninth Circuit’s 2015 en banc Garcia v. Google decision – a decision more about fraud and fatwas than clear conclusions on how copyright law applies to acting. The Article then uses some simple thought experiments to establish how dramatic performers generally meet both the Constitutional and statutory standard for “authorship.” Finally, the Article reviews the various filters that prevent actors-as-authors legal struggles and how, when all else fails, we can consider actors as joint authors of the audiovisual works embodying their dramatic performances.
The article presents a detailed and nuanced view of what it means to be an author, as well as a good discussion of the development of the law in this area. As the abstract alludes to, it turns out that much of our view of actor protections is based on how things have been done and expediency (e.g. work made for hire) rather than a detailed examination of authorship in film.

For example, it has always been unclear to me why we protect a musician's performance of pre-scripted music in a sound recording, but not an actor's performance of a pre-scripted movie in an audiovisual work. The statute allows for both protections, and the primary reason seems to be that we don't think it's right.

Similarly, joint authorship is very strange. In Aalmuhammed v. Lee, the Ninth Circuit ruled that, despite the contribution of several elements and several scenes, one must be either a full joint author or nothing. There is no in-between. Like Garcia v. Google, this appears to be for expedience (and Hughes examines several other reasons), as well as a view that the only "work" can be the final work, and not each scene before it is pieced together, a legal fiction in the modern era of copyrightability in unpublished works.

This article explores much of the thinking I had at the time of Garcia v. Google, so those who favored that ruling will likely think it is as crazy as they thought I was. However, I think the article is still worth a read, if only to pinpoint where you think it goes astray, if it does.

Friday, May 4, 2018

Academic IP Conferences

Three years ago, I posted some general advice about academic IP conferences, including links to sites that compile IP conference information. Most of that advice still stands, but the definitive IP conference compilation site has moved to https://emptydoors.com/conferences, where it is maintained by Professor Saurabh Vishnubhakat—who was a wonderful member of a conference panel I moderated last week.

The most recent entry on Saurabh's site is interesting: the AALS Remedies Section has a call for papers for a program on IP remedies at the Jan. 2019 AALS Annual Meeting in New Orleans. Abstracts are due June 1.

Tuesday, May 1, 2018

Jake Sherkow Guest Post: What the CRISPR Patent Appeal Teaches Us About Legal Scholarship

Guest post by Professor Jake Sherkow of New York Law School, who is currently a Visiting Scholar at Stanford Law School.

Yesterday, the Federal Circuit heard oral argument in the dispute between the University of California and the Broad Institute over a set of fundamental patents covering CRISPR-Cas9, the revolutionary gene-editing technology. Lisa has been kind enough to invite me to write a few words here about the dispute, and I thought I’d take that generous opportunity to discuss two aspects of yesterday’s argument: the basics of the appeal and, given that this blog is devoted to legal scholarship about patent law, what the argument can teach us, if anything, about IP scholarship in general. I think the short answer to the second question is, Quite a lot, although perhaps not for obvious reasons.