Friday, July 30, 2021

What’s happening with proposals for a WTO waiver of COVID-related IP?

By Nicholson Price, Rachel Sachs, Jacob S. Sherkow, and Lisa Larrimore Ouellette

If COVID-19 were a pandemic movie, we’d be very close to the end since we’ve identified several excellent vaccines; the conventional biomedical innovation narrative often ends with the product being fully developed. But we’ve still got a long way to go with COVID-19, and the biggest challenge is getting the vaccines to billions more people (and getting them to take the vaccines, but that’s a separate topic). Only 0.3% of global doses have been administered in low-income countries, many of which are confronting severe outbreaks. A staggering 1 million infections were reported in Africa in just one month, with few vaccines in sight. By some estimates, much of the world’s population won’t be vaccinated until well into 2023. Amid pledges of sharing vaccines, perhaps the most prominent policy debate today is about waiving intellectual property rights to COVID-19 technologies, including vaccines. In this post we explain what’s being proposed, what’s happening with the waiver negotiations, and what impact these negotiations might have.

Monday, July 12, 2021

New Free Patent Casebook by Masur & Ouellette

As previously announced, I have been writing a new free patent law casebook with Prof. Jonathan Masur (Chicago Law), and we're very grateful to everyone who has provided helpful comments on the beta edition over the past year.

We are excited to be releasing the 1st edition. You can download a free PDF or purchase an at-cost color printed copy through Amazon here:

We've tried to achieve a number of goals with this project beyond simply lowering the cost of course materials:

  • The casebook is heavily problem-focused, including problems that can be used for out-of-class assignments, in-class multiple-choice polls, and small-group activities. Some problems are drawn from real cases, while others are hypotheticals constructed to isolate and explain difficult concepts.
  • A key goal was bringing conceptual clarity to the details of modern patent practice, which means that cases are very heavily edited, some topics are presented through means other than case excerpts, and we have many diagrams and notes to help explain the points that are most likely to trip students up.
  • Finally, we have worked to place patent law in its social context, including by surfacing issues of race and gender and exploring the connections between patent law and inequality among innovators and inequality in access to innovations.

For adopting instructors, we have an accompanying slide deck (including many multiple-choice questions and figures from the patents at issue in excerpted cases) and a teacher's manual with answers to practice problems and suggestions for Q&A with students about cases. We are also happy to share a Word version of the casebook.

The casebook is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. We are likely willing to authorize many derivative uses; please contact us to discuss.

If you have questions, suggestions, or interest in adopting the casebook, please let us know at and

We're delighted that patent law instructors will have multiple free course materials to choose from for the coming academic year. For those looking for free or low-cost options across different areas of IP, James Grimmelmann maintains a helpful compilation here.

Thursday, July 1, 2021

Rob Merges Guest Post: Who Gives a Hoot About Minerva? The Patent Act and the Common Law of Patents

Guest Post by Rob Merges, UC Berkeley

In the immediate, practical sense, the Minerva opinion registers like the mildest tremor on the landscape of patent law. With a few tweaks of the standard patent assignment agreement, and putting aside the potential that the Federal Circuit will bollix up the follow-through, the opinion changed very little.

But, sometimes, a ripple on the surface denotes more dramatic movement in the deep crust. So it may be with this prosaic little case of assignor estoppel. Justice Barrett’s dissent signals a potentially radical reappraisal of the many common law rules that supplement, permeate and modify the body of operational U.S. patent law. If the signals are portents, then many settled doctrines of patent law – and other fields of IP law as well – have been quietly but surely put into play.