George Mason University Antonin Scalia Law School

CPIP Second Quarter Progress Report (March-May 2021)

Sean O'ConnorGreetings from CPIP Executive Director Sean O’Connor

We are cautiously optimistic as locations around the globe move towards greater control of the COVID pandemic. With luck, diligence, and generosity by public and private sectors around the world, we can all strive for vaccines to be more widely accessible and a future in which we can see other in person again.

Our Second Quarter Progress Report for 2021 covers CPIP’s and our affiliates’ events, news, scholarship, and more from March through May of this year. Our team has just wrapped up the fourth iteration of the WIPO-U.S. Summer School on Intellectual Property at CPIP, and we’re looking forward to in-person and hybrid programming in the coming months––look for details in our future progress reports and communications. We also have an exciting new name announcement coming later this week, and we’re looking forward to seeing what the rest of the year brings. In the meantime, I’m pleased to present this report on CPIP’s output from the past few months.

CPIP Hosted & Co-Hosted Events

On Wednesday, March 3, Arlington Economic Development’s BizLaunch network co-hosted a public online event entitled “Mason Law Clinic @BizLaunch: Which Entity is Right for Your Startup?” with George Mason University Antonin Scalia Law School’s Innovation Law Clinic, which is led by CPIP Executive Director Sean O’Connor. The virtual clinic addressed entrepreneurship and which business entities might best fit a business’s needs and attract investment. The panelists were Kenneth Silverberg, Senior Counsel at Nixon Peabody, and third-year Scalia Law students Mitch Gibson and Rebecka Haynes. A video of the event is available on CPIP’s YouTube page.

Now in its seventh iteration, CPIP’s 2021-2022 Thomas Edison Innovation Law and Policy Fellowship had its first virtual meeting on Thursday, March 18, and Friday, March 19. The Edison Fellowship is a year-long non-resident fellowship program that brings together a group of scholars to develop research papers on intellectual property law and policy. The Edison Fellowship is one of the centerpieces of CPIP’s mission to promote a better academic discussion about intellectual property rights with substantial scholarship produced from rigorous research that examines the moral and economic value of innovation. This year’s topics include: the PTAB, patent disclosures and artificial intelligence, levels of licensing of SEPs, SEPs vs NEPs in litigation, drug repurposing and generics, regulatory exclusivities, copyright law, privacy law, and the right of publicity.

From April 15-16, CPIP hosted a virtual roundtable discussion on Copyright and the Constitution. This private, invitation-only roundtable explored current and historical topics in Copyright and the Constitution. Proposals to address challenges faced by authors and owners of copyrighted works are frequently met by claims from opponents that the proposals do not pass constitutional muster. Such allegations are typically baseless; however, they delay and increase the costs of pursuing legislative and other measures intended to protect and promote the creativity of authors. This roundtable investigated what has transpired in the courts and public discourse as well as how these precedents might inform current and future efforts to protect the interests of the creative community and ultimately the public.

On May 4 and as part of Arlington Forward’s 20:20 Series, CPIP co-hosted a virtual panel, Protecting What You Build: Intellectual Property as the Entrepreneur’s Core Asset, with CPIP Directors Professor Sean O’Connor, Professor Sandra Aistars, and Joshua Kresh as the featured speakers. Great entrepreneurs execute on an innovative vision to improve the lives of others. Whether for profit or not for profit, the core of these ventures consists of particular solutions to tough problems. Such solutions in turn are combinations of information and practical methods, code or devices that are legally defined as intellectual property. Patents, copyrights, trade secrets and trademarks play different roles in defining the scope, title and rights to innovative solutions. This session guided attendees through these types of intellectual property and explained how experienced entrepreneurs rely on them to implement their visions. A video of the event is available on CPIP’s YouTube page.

News & Speaking Engagements

On Tuesday, March 30, the U.S. News & World Report Rankings came out, and CPIP is pleased to report that Scalia Law placed 41 overall and that the IP program went from 30 to 26. Also, the part-time law program at Scalia Law ranked No. 4 among public and private institutions.

Congratulations to all the Scalia Law students who graduated on May 15! This was a challenging year with unprecedented obstacles and we appreciate the students’ patience in adjusting to the online class format and doing their best. Well done and best of luck!

Further, CPIP would like to congratulate The Honorable Kimberly A. Moore, who became Chief Judge of the United States Court of Appeals for the Federal Circuit on May 22, 2021. She succeeded the Honorable Sharon Prost, who served as Chief Judge since May 31, 2014. Before joining the bench, Judge Moore was a faculty member of our George Mason University School of Law.

The Innovation Law Clinic, an affiliate of CPIP, was mentioned in the article “New pilot space debuts in Arlington” in Mason’s newsletter, The George, on May 27. The Clinic and other related innovation programs will temporarily be housed in a “showroom” location at Vernon Smith Hall until moving into the Mason Exchange building under construction here on the Arlington campus with a scheduled opening date of May 2025.

Sandra Aistars (CPIP Director of Copyright Research and Policy; Founding Director, Arts & Entertainment Advocacy Clinic; Clinical Professor of Law, George Mason University Antonin Scalia Law School)

    • Spoke at Scalia Law’s virtual Admissions Event on March 18
    • Along with filmmaker Lynn Hughes, was a featured speaker for an online clinic, “Copyright Law and the CASE Act,” on March 23. The event was organized under Prof. Aistars’ guidance by the Arts & Entertainment Advocacy Clinic at Antonin Scalia Law School and co-hosted with Washington Area Lawyers for the Arts (WALA). The clinic also conducted a live Q&A session for artists.
    • Spoke that same evening (March 23) on a virtual panel, “Representing Women: A Conversation on Representation for Artists and of Women in the Arts,” as part of the George Washington Law Association for Women’s March webinar series Nine: Portraits of Women in the Law
    • On April 6, moderated a virtual panel entitled “Artist Roundtable: Representing and Working with Artists in the Digital Age,” which was hosted by Scalia Law’s Arts & Entertainment Advocacy Clinic. The panel consisted of three creators on the forefront of art and creativity in the digital age: musician, singer, and songwriter David Lowery; film director, producer, and editorial photographer Stacey Marbrey; and author, communications professional, and copyright advocate David Newhoff. They spoke about their careers and what artists look for when partnering with legal counsel or other advocates, as well as issues that matter to artists and businesses in the arts today.
    • Spoke on the virtual panel “Platform Liability in the US and EU” during the 28th Annual Fordham IP Conference on April 9
    • Organized and signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Moderated a virtual Federalist Society panel, “Courthouse Steps Decision Webinar: Google v. Oracle,” on April 16 (the podcast version is also available via the link)
    • Participated as a panelist during an IP law section discussion on Google v. Oracle hosted virtually by the American Bar Association on April 29
    • Participated in Scalia Law’s Law & Economics Center’s program Introduction to the Economics of Information, Privacy, and Data Security from May 19-23
    • Co-wrote, organized, and filed a May amicus brief, signed by IP scholars, stating that the Federal Circuit should reverse the Eastern District of Texas’ judgment in SAS Institute Inc. v. World Programming Ltd.: “The Court’s holding that Plaintiff’s works are uncopyrightable in their entirety was reached through a flawed examination, in the context of a novel proceeding, that is inconsistent with both the Copyright Act and applicable case law. If sustained, this approach would significantly undermine Congressional intent of promoting and rewarding copyright registration, and set the bar of establishing copyrightability so high that it would prejudice copyright owners not merely in the software sector, but across the full spectrum of creative works.” Students of the Arts & Entertainment Advocacy Clinic helped to research and prepare the brief; Robert W. Clarida (Partner, Reitler Kailas & Rosenblatt, LLC) served as counsel of record, and Steven M. Tepp (President & CEO, Sentinel Worldwide) provided valuable advice.

Jonathan Barnett (CPIP Senior Fellow for Innovation Policy & Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)

Eric Claeys (CPIP Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

Devlin Hartline (Former Director of Communications, CPIP; Former Assistant Professor of Law, George Mason University Antonin Scalia Law)

    • Served as Presiding Officer on March 23, the first day of the virtual 16th Annual Advanced Patent Law Institute, and introduced Acting USPTO Director Drew Hirshfeld, among others. This event was co-sponsored by the University of Texas School of Law and the Antonin Scalia Law School and hosted by the USPTO.
    • Attended the University of Akron School of Law’s virtual 23rd Annual Symposium on Intellectual Property Law and Policy on March 25-26 and moderated the final panel, “The Latest Tools and Challenges for Copyright Enforcement,” on March 26
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Along with other IP scholars, signed a May amicus brief stating that the Federal Circuit should reverse the Eastern District of Texas’ judgment in SAS Institute Inc. v. World Programming Ltd.
    • As of late May 2021, Devlin Hartline has left CPIP and George Mason University Antonin Scalia Law School. Devlin joined CPIP in May 2015 and, as a core member of the team, has contributed substantially to CPIP’s mission, events, programs, and scholarship––as well as team morale––over these past six years. As his teammates, we will miss working with him, and we want to thank him for all his contributions and dedicated work at CPIP. We also wish him the best as he joins the Hudson Institute this July. For now, you can find Devlin on Twitter @devlinhartline.

Christopher Holman (CPIP Senior Fellow for Life Sciences & Senior Scholar; Professor of Law, University of Missouri-Kansas City School of Law)

    • Participated as a Distinguished Senior Commentator in the first meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship, held virtually March 18-19
    • With CPIP Executive Director Prof. Sean O’Connor, submitted written comments on April 5 to NIST on proposed changes to Bayh-Dole Regulations
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections

Joshua Kresh (CPIP Deputy Director)

    • Attended the 28th Annual Fordham IP Conference on April 8-9
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Served as a coordinator for AIPLA’s 2021 Virtual Spring Meeting, which was held from May 10-14 (the event program can be viewed here)

Erika Lietzan (CPIP Senior Scholar; William H Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)

Hina Mehta (CPIP Scholar; Director, Office of Technology Transfer, George Mason University)

    • Gave a webinar on Research Trends at George Mason University for University of Bahrain’s event UoB Research Nights held in mid-May

Sean M. O’Connor (CPIP Executive Director; Founding Director, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

    • Featured CLE speaker at Washington State Patent Lawyers Association’s event, “Bypassing Patents in the Pandemic? The Biden Administration Should Beware Revisionist Accounts of March-In Rights and Sec. 1498” on March 17
    • Spoke at Scalia Law’s virtual Admissions Event on March 18
    • Quoted in a March 29 article by FiercePharma, “Biden faces calls to break COVID-19 vaccine patents. Would that boost global supply?”
    • With CPIP Senior Scholar Prof. Chris Holman, submitted written comments on April 5 to NIST on proposed changes to Bayh-Dole Regulations
    • Featured CLE speaker at Patent and Trademark Office Society (PTOS) event “Bypassing Patents in the Pandemic? The Biden Administration Should Beware Revisionist Accounts of March-In Rights and Sec. 1498” held virtually on April 6
    • Spoke on the virtual panel “Copyright & Music” during the 28th Annual Fordham IP Conference on April 9
    • Spoke on the virtual panel “Intermediary Liability at the Application Layer and Beyond” at the Silicon Flatirons conference, Platform Policy for Networks, Infrastructure, and Applications, on April 14
    • Signed an April 14 “Open Letter by Academics in Favor of Direct EV Sales and Service” supporting direct-to-consumer sales by EV manufacturers such as Tesla (the accompanying letter by public interest organizations can be found here)
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Spoke on the virtual panel “Google v. Oracle: An Initial Appraisal” hosted by Berkeley Center for Law and Technology on April 20
    • Participated in the U.S. Embassy Tokyo’s World IP Day virtual program on IP & SMEs: Taking your ideas to market, speaking on the panel entitled “Patents to Patients: The Role of Intellectual Property in Innovative Healthcare” on the evening of April 26 JST (Japanese-language video of event available here)

Kristen Jakobsen Osenga (CPIP Senior Scholar; Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

    • Moderated a Federalist Society panel, “Courthouse Steps Oral Argument Webinar: United States v. Arthrex Inc.,” on March 1
    • Starting in March 2021, Prof. Osenga has taken over the chair of the Federalist Society Intellectual Property Group Executive Committee from Professor Mark Schultz.
    • Featured in a short video by the Federalist Society on “What is a Trademark? [Legal Terms]” on April 13
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • Spoke on the virtual panel on “The Common Purposes of Intellectual Property and Antitrust” with Ashley Baker and Seth Cooper and organized by the Committee for Justice on April 19 (Video of panel available here)
    • Mentioned in an April 28 Patently-O post, “The Public Private Nature of Patents,” by Dennis Crouch, as representing the appellant company Kannuu in Kannuu Pty Ltd. v. Samsung Electronics Co., Ltd.
    • Featured in the Gray Matters podcast on May 4 in the episode “Regulating Vaccines After COVID-19: A Conversation with Sam Kalabi and Kristen Osenga”
    • Featured in a video by University of Richmond School of Law, “The Synopsis: Patents on COVID Vaccines,” on May 12

Eric Priest (CPIP Senior Scholar; Associate Professor, University of Oregon School of Law)

    • Along with other IP scholars, signed a May amicus brief stating that the Federal Circuit should reverse the Eastern District of Texas’ judgment in SAS Institute Inc. v. World Programming Ltd.

Mark Schultz (CPIP Senior Scholar; Goodyear Tire & Rubber Company Chair in Intellectual Property Law, University of Akron School of Law; Director, Center for Intellectual Property Law and Technology)

    • Participated as a Distinguished Senior Commentator in the first meeting of the 2021-2022 Thomas Edison Innovation Law and Policy Fellowship, held virtually March 18-19
    • Was the drafting team co-lead on the 2021 Sedona Conference’s Framework for Analysis on Trade Secret Issues Across International Borders: Extraterritorial Reach, which has been published for public comment as of March
    • Held the University of Akron School of Law’s 23rd Annual Symposium on Intellectual Property Law and Policy virtually on March 25-26
    • Signed an April 15 letter to the Biden Administration urging opposition to the proposed WTO waiver to the TRIPS Agreement’s IP protections
    • On April 28, spoke on the World Intellectual Property Organization (WIPO) webinar “Closing the Gender Gap in Intellectual Property – Mapping and Addressing Barriers”
    • On April 29, spoke on the virtual panel “How Intellectual Property Has Played a Pivotal Role in the Global COVID-19 Response,” which hosted by the Information Technology & Innovation Foundation (ITIF)
    • On May 27, spoke on a webinar on “The Role of Intellectual Property during the pandemic,” held by the Institute for Prospective and Innovation in Health (INNOS) in Colombia. Both the writeup and a link to the webinar recording can be found on this page.
    • Along with other IP scholars, signed a May amicus brief stating that the Federal Circuit should reverse the Eastern District of Texas’ judgment in SAS Institute Inc. v. World Programming Ltd.

Ted Sichelman (CPIP Senior Scholar; Professor of Law, University of San Diego School of Law; Director, Center for Intellectual Property Law & Markets; Founder & Director, Center for Computation, Mathematics, and the Law; Founder & Director, Technology Entrepreneurship and Intellectual Property Clinic)

    • Mentioned in an April 28 Patently-O post, The Public Private Nature of Patents, written by Dennis Crouch, as representing the appellant company Kannuu in Kannuu Pty Ltd. v. Samsung Electronics Co., Ltd.

Scholarship & Other Writings

Alden Abbott, Kevin Madigan, Adam Mossoff, Kristen Osenga, and Zvi Rosen, Holding States Accountable for Copyright Piracy, Regulatory Transparency Project of the Federalist Society (May 13, 2021)

Jonathan M. Barnett, Antitrust Lessons from AT&T’s M&A Fiasco, Truth on the Market (May 24, 2021)

Jonathan M. Barnett, Have tech platforms captured the Supreme Court?, The Hill (Apr. 17, 2021)

Jonathan Barnett, Investors and Regulators Can Both Fall for Platform Bubbles, Truth on the Market (Mar. 2, 2021)

Jonathan Barnett, Why Big Tech Likes Weak IP, Cato Institute (Spring 2021)

CPIP Staff, CPIP First Quarter Progress Report (December 2020-February 2021), CPIP Blog (Mar. 31, 2021)

CPIP Staff, UC Hastings’ Evergreen Drug Patent Search Database: A Look Behind the Statistics Reveals Problems with this Approach to Identifying and Quantifying So-Called “Evergreening,” CPIP Blog (Mar. 4, 2021)

Wade Cribbs, Accenture Report Outlines How 5G Technology Accelerates Economic Growth, CPIP Blog (Mar. 8, 2021)

Wade Cribbs, Scalia Law’s Innovation Law Clinic Partners with BizLaunch for Online Legal Clinic on Business Entities for Startups, CPIP Blog (Mar. 10, 2021)

Tabrez Ebrahim, Professor Tabrez Ebrahim on Clean and Sustainable Technological Innovation, CPIP Blog (Mar. 25, 2021)

Christopher M. Holman, Branded Drug Companies Are Successfully Asserting the Doctrine of Equivalents in Hatch-Waxman Litigation, 40 Biotechnology Law Report 72 (Mar. 2021)

Mark David Janis and Ted M. Sichelman, Patent Law: An Open-Source Casebook (Chapter 5: Anticipation) (Apr. 26, 2021)

Mark David Janis, Ted M. Sichelman, John R. Allison, Thomas F. Cotter, Christopher Anthony Cotropia, Dmitry Karshtedt, Jeffrey A. Lefstin, Jason Rantanen, David Taylor and Shine (Sean) Tu, Patent Law: An Open-Source Casebook (Entire Book), UC Hastings Research Paper Forthcoming (May 6, 2021)

David J. Kappos and Jonathan Barnett, Covid-19 Vaccine Highlights the Need for Balanced Patent Policy, Bloomberg Law (Mar. 16, 2021)

Douglas C. Lippoldt and Mark F. Schultz, An Opportunity for Leadership on Trade Secrets Protection in the Australia-UK Free Trade Agreement, Institute for International Trade (Mar. 25, 2021)

Adam Mossoff and Devlin Hartline, Google v. Oracle: A Copyrightability Decision Masquerading as Fair Use, Washington Legal Foundation (May 7, 2021)

Christopher M. Newman, Isn’t Infringement Ever Apparent?: Toward a Balanced Reading of §512 of the Digital Millennium Copyright Act, George Mason Legal Studies Research Paper No. LS 21-03 (Mar. 5, 2021)

Kristen Osenga, If You’re Sailing Into the Headwinds, You Might Be Going In the Wrong Direction, RealClearMarkets (Apr. 20, 2021)

Kristen Osenga, Online Symposium: Prof. Osenga’s Top 2020 Federal Circuit Patent Decisions, FedCircuitBlog (Mar. 30, 2021)

Yogesh Pai, WTO IP waiver too simplistic: Global vaccine tech-transfer needs other strategies, CPIP Blog (Apr. 29, 2021) (Originally posted in the Express Pharma edition of the Indian Express, Apr. 28, 2021)

Jason Rantanen, Mark David Janis, and Ted M. Sichelman, Patent Law: An Open-Source Casebook (Chapter 7: Infringement) (Apr. 29, 2021)

Ryan Reynolds, Professors Balganesh and Menell on “The Curious Case of the Restatement of Copyright, CPIP Blog (Apr. 8, 2021)

Ryan Reynolds, Professor Justin Hughes on “Restating Copyright Law’s Originality Requirement, CPIP Blog (May 20, 2021)

Mark Schultz, The EU can put trust back into online commerce, The Brussels Times (Mar. 6, 2021)

Austin Shaffer, Artist Roundtable Presented by the Mason Sports & Entertainment Law Association and the Arts & Entertainment Advocacy Clinic, CPIP Blog (May 5, 2021)

Liz Velander, Ninth Circuit Narrows Copyright Owner’s Ability to Receive Multiple Statutory Damages Awards, CPIP Blog (Mar. 17, 2021)

Liz Velander, Recap of the Supreme Court’s Google v. Oracle Opinion,“ CPIP Blog (Apr. 23, 2021)