George Mason University Antonin Scalia Law School

C-IP2 Spring 2024 Progress Report (December 2023-February 2024)

Greetings from C-IP2 Interim Executive Director Joshua A. Kresh

Headshot of Joshua KreshI am pleased to report that our long-worked-on book, 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things, was published and is available from Cambridge University Press. We will also be hosting a launch event on Monday, April 15, from 12:20 – 1:50 ET; live-stream registration is available here.

Since our last report we hosted our High Tech and Life Sciences roundtables, where representatives from industry and academics discussed significant issues and research projects. We have a few whitepapers in progress based on those discussions, and I hope to have more details to share in our next report.

We are testing out a new format for this report to make it easier to find updates by subject matter. We have separated our updates into General, Copyright, High Tech, and Life Sciences. As certain projects cover or at least are of interest to multiple areas, we will have items listed in multiple sections where appropriate. This is a work-in-progress, and we welcome feedback about the new format.

Along with our upcoming book launch, we are busy preparing for the WIPO-U.S. Summer School on IP, which serves as a great introduction to all areas of U.S. IP law. Please consider recommending the program to new members of your teams, and for our sponsors (or potential sponsors), please reach out to me at jkresh@gmu.edu, and I will be happy to discuss options for your interns and new team members. We are also preparing for our upcoming Copyright Roundtable, which will be in July, and our Annual Fall Conference this October 17-18.

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General IP: Interdisciplinary

General IP: C-IP2-Hosted & Co-Hosted Events

Third and Final Meeting of the 2023-2024 Thomas Edison Innovation Fellowship

On January 18-19, 2024, C-IP2 hosted the third and final meeting of the 2024-2025 Thomas Edison Innovation Law and Policy Fellowship. The Edison Fellows presented substantially revised drafts of their research papers and received feedback from Distinguished Commentators and other Fellows before submission to journals.

General IP: News & Speaking Engagements

Congratulations to 2024-2025 Edison Fellows, chosen in December and whom we are meeting this March in La Jolla, California, for the Fellowship’s first meeting!

    • Mark A. Cohen – Director, Distinguished Senior Fellow and Lecturer, University of California, Berkeley – School of Law (LinkedIn)
    • Virginia (Ginger) Dellenbaugh – Yale University Department of Music (Yale Music profile)
    • Michael L. Doane – Visiting Assistant Professor, University of Akron School of Law (LinkedIn)
    • Diego S. Dumani, PhD – Associate Professor; Director, Biomedical Engineering Research Laboratory, University of Costa Rica (LinkedIn)
    • Stefan Geirhofer – Senior Associate, Wilson Sonsini Goodrich & Rosati PC (LinkedIn)
    • Gabriela Lenarczyk – Associate Researcher, Polish Academy of Sciences (LinkedIn)
    • David E. Moore – Patent Attorney, Brundidge & Stanger, P.C. (LinkedIn)
    • Matthew G. Sipe – Assistant Professor, University of Baltimore School of Law (University of Baltimore School of Law profile)
    • Bhamati Viswanathan – Faculty Fellow, New England Law | Boston (LinkedIn)

Congratulations to former C-IP2 Research Assistant Sarah Kratt, who started as a judicial intern on the U.S. Court of Appeals for the Federal Circuit on January 9!

In February, IPWatchdog posted a C-IP2 press release on the 2024 WIPO-U.S. Summer School on Intellectual Property. Learn more about the program and register, or share with someone who might be interested.

Work and updates from C-IP2 2023-2024 Edison Fellow Michael Goodyear:

Olufunmilayo B. Arewa (C-IP2 Senior Fellow for Entrepreneurship & Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

    • On February 8, gave a presentation related to book project Curating Black Culture: Music, Ownership and Commodification at the Annual Symposium of the Vanderbilt Journal of Technology & Entertainment Law in Nashville, Tennessee
    • Moderated the panel “Legal, Ethical, and Economic Foundations for Indigenous Intangible Property” for February 15 conference Indigenous Peoples, Traditional Knowledge, and Intellectual Property in International Law at Harvard Law School. The conference was featured in February 26 Harvard Law Today article “Protecting Indigenous peoples’ knowledge: A Harvard Law conference and project focuses on Indigenous traditional knowledge and modern justice” (Professor Arewa was mentioned for moderating the panel).

Theo Cheng (C-IP2 Practitioner in Residence; Arbitrator and Mediator, ADR Office of Theo Cheng LLC; Adjunct Professor, New York Law School)

Eric Claeys (C-IP2 Senior Fellow for Scholarly Initiatives & Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

    • Was interviewed for a December 1 NBC Washington video report on the legacy of Justice Sandra Day O’Connor, whom Professor Claeys knew personally
    • With Joshua Kresh, coordinated and led the final meeting of the 2023-2024 Edison Fellowship on January 18-19

Lolita Darden (C-IP2 Scholar; Visiting Associate Clinical Professor and Director, Intellectual Property and Technology Clinic, The George Washington University Law School)

    • Was mentioned in December 4 George Washington University Law School announcement “GW Law Launches its New Center for Law and Technology”
    • Was quoted in USPTO’s December 6 press release “USPTO announces new Public Advisory Committee members to help advise agency and advance core mission of fostering and protecting innovation across America”

Gregory Dolin (C-IP2 Senior Scholar; Associate Professor of Law, University of Baltimore School of Law)

    • Was mentioned in January 24 Bloomberg Law article “Oldest Active Federal Judge Seeks Reinstatement During Hearing”
    • Was quoted in February 7 ABA Journal story “Federal appeals judge, 96, fails to overturn suspension order for refusing to cooperate in fitness probe”
    • Was mentioned in February 7 BNN Breaking story “Suspension of Judge Pauline Newman Upheld, Fuels Debate on Judicial Independence”
    • Was quoted in February 12 Law and Crime article “‘Unprecedented in American judicial history’: Oldest federal judge vows to ‘continue to fight’ to be reinstated on bench after fellow judges have her suspended for ‘overwhelming evidence’ of decreased mental capacity”

John F. Duffy (C-IP2 Senior Scholar; Samuel H. McCoy II Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law)

    • Was mentioned in January 30 Yale Journal on Regulation article “Ad Law Reading Room: A Chevron Trifecta”
    • Was mentioned in February 27 UVA Law news story “As New Supreme Court Decision Looms on Chevron, Professors Discuss Extent of Administrative Agencies’ Power”
    • Moderated a February 27 Federalist Society’s RTP Fourth Branch Podcast: Deep Dive Episode 287 – Courthouse Steps Oral Argument: Corner Post, Inc. v. Board of Governors of the Federal Reserve System 

Tabrez Ebrahim (C-IP2 Scholar; Associate Professor of Law at Lewis & Clark Law School)

    • On December 17, gave a research presentation to Jordan University of Science & Technology (JUST) university administration/leadership, faculty, and graduate students entitled “Islamic Intellectual Property”
    • Gave a keynote address on “Islamic Theory of Intellectual Property Law” for the February 27-29 Middle East and North African Studies Symposium’s 10th Annual Symposium: Language and Politics in the Middle East & North Africa.

Camilla A. Hrdy (C-IP2 Scholar; Professor of Intellectual Property Law, University of Akron School of Law)

    • Was mentioned in February 2 Washington and Lee University’s The Columns piece ‘Chris Seaman Publishes “Beyond Trade Secrecy’ in the Yale Law Journal”

Justin (Gus) Hurwitz (C-IP2 Senior Scholar; Senior Fellow and Academic Director, Center for Technology, Innovation, and Competition, University of Pennsylvania Carey Law School)

    • Was mentioned in February 13 Reason article about Episode 491 (“Death, taxes, and data regulation”) of the Cyberlaw Podcast
    • Was interviewed for Penn Today’s February 27 discussion “The Supreme Court arguments on social media laws”

Steven D. Jamar (C-IP2 Senior Scholar; Associate Director, Institute for Intellectual Property and Social Justice (IIPSJ); Professor Emeritus, Howard University School of Law)

Joshua Kresh (C-IP2 Interim Executive Director)

    • With Eric Claeys, coordinated and led the final meeting of the 2023-2024 Edison Fellowship on January 18-19

Daryl Lim (C-IP2 Senior Scholar; H. Laddie Montague Jr. Chair in Law; Associate Dean for Research and Innovation; Founding Director, Intellectual Property Law and Innovation Initiative; and co-hire, Institute for Computational and Data Sciences, Penn State University)

Adam MacLeod (C-IP2 Senior Scholar; Professor of Law, Faulkner University, Thomas Goode Jones School of Law; Research Fellow, Center for Religion, Culture, and Democracy)

    • Was mentioned in January 15 Boing Boing story “How a law prof got a judge to rule that speeding cam tickets are unenforceable”

Lateef Mtima (C-IP2 Senior Scholar; Professor of Law, Howard University School of Law; Founder and Director, Institute for Intellectual Property and Social Justice (IIPSJ))

Christopher M. Newman (C-IP2 Senior Scholar; Associate Professor of Law, George Mason University Antonin Scalia Law School)

    • Was quoted in December 13 The News Beyond Detroit article “How the Supreme Court Could Reshape Free Speech Online”

Michael Risch (C-IP2 Senior Scholar; Vice Dean and Professor of Law, Villanova University Charles Widger School of Law)

    • Spoke as a guest on February 21 Discussions at the Round Table podcast episode “At the Round Table with Intellectual Property & Internet Law Expert, Michael Risch”

Alexandra Jane Roberts (C-IP2 Senior Scholar; Professor of Law and Media, Northeastern University School of Law)

    • Was quoted in January 27 Axios Markets article “1 big thing: Where fake news is ubiquitous” on her research on deceptive advertising by multi-level marketing sellers

Saurabh Vishnubhakat (C-IP2 Senior Scholar; Professor of Law, Yeshiva University Benjamin N. Cardozo School of Law)

    • Was mentioned in Law.com’s December 19 analysis ‘The Northern District of Illinois v. the Internet’: How Chicago Became the Center of Schedule A Trademark Infringement Litigation”

General IP: Scholarship & Other Writings

John Fitzgerald Duffy, CHEVRON, DE NOVO: DELEGATION, NOT DEFERENCE (January 10, 2024). Virginia Public Law and Legal Theory Research Paper No. 2024-03

John F. Duffy, “The Important Statutory Sections Ignored by the Parties in Loper Bright and Relentless,” Yale Journal on Regulation (January 17, 2024)

Camilla A. Hrdy, “Beyond the AI Black Box: Links to Articles and Interview With Charlotte Tschider,” Written Description (January 23, 2024)

Camilla A. Hrdy, “Fast Secrets: Trade Secrets in Fashion,” The Routledge Handbook of Fashion Law (Eds. Irene Calboli and Eleonora Rosati, Forthcoming)

Camilla A. Hrdy and Daniel H. Brean, The Patent Law Origins of Science Fiction, Columbia Journal of Law & the Arts, Volume 47, Forthcoming

Camilla A. Hrdy and Christopher B. Seaman, Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Yale Law Journal, Vol. 133 [SSRN]

Camilla Hrdy and Christopher Seaman, Confidentiality Agreements Can Act Like Noncompetes, ProMarket (February 8, 2024)

Steven D. Jamar, “Trade Secrets from an Intellectual Property Social Justice Perspective,” in The Cambridge Handbook of Intellectual Property and Social Justice, eds. Steven D. Jamar & Lateef Mtima (Cambridge: Cambridge University Press, 2024), 158-166

Steven D. Jamar and Lateef Mtima (editors), The Cambridge Handbook of Intellectual Property and Social Justice (Cambridge: Cambridge University Press, 2024)

Lateef Mtima & Steven D. Jamar, “Introduction: Intellectual Property Social Justice Theory: History, Development, and Description,” The Cambridge Handbook of Intellectual Property and Social Justice (Cambridge: Cambridge University Press, 2024)

Lateef Mtima, “Intellectual Property Social Justice: A Theoretical Rationale,” in The Cambridge Handbook of Intellectual Property and Social Justice, eds. Steven D. Jamar & Lateef Mtima (Cambridge: Cambridge University Press, 2024), 76-98

Lateef Mtima, “Prolusion: What Is Intellectual Property (And Why Should You Care About It Anyway?) – A Layperson’s Guide to Intellectual Property Law,” in The Cambridge Handbook of Intellectual Property and Social Justice, eds. Steven D. Jamar & Lateef Mtima (Cambridge: Cambridge University Press, 2024), xxvii – xxxvi

Alexandra Jane Roberts, Multi-Level Lies (January 7, 2024). Northeastern University School of Law Research Paper No. 445

Lisa A. Tucker and Michael Risch, Canceling Appellate Precedent (March 19, 2023). Florida Law Review, Vol. 76, p. 175 (2024)

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Copyright

Copyright: News & Speaking Engagements

The 2023-2024 Edison Fellows are in the process of finalizing their papers and submitting them to journals. Titles and summaries for a selection of these papers are included in this report, and we will feature all of the papers in upcoming reports.

    • Michael Goodyear:
      • Title: Infringing Information Architectures (forthcoming UC Davis Law Review)
      • Description: This Article examines the history of what it terms architectural infringement claims, systemic secondary copyright infringement claims against product and service providers for the infringements of all their users. It reveals how these providers’ intent (or lack thereof) animated courts and Congress’ refinements of secondary copyright infringement liability and suggests how this same intent polestar could be used to maintain balanced copyright law in response to emerging architectural infringement challenges involving technologies such as artificial intelligence and blockchain.

Further work and updates from C-IP2 2023-2024 Edison Fellow Michael Goodyear:

    • Activities
    • Mentions

 

Sandra Aistars (C-IP2 Senior Fellow for Copyright Research and Policy & Senior Scholar; Founding Director, Arts & Entertainment Advocacy Clinic; Clinical Professor of Law, George Mason University Antonin Scalia Law School)

Olufunmilayo B. Arewa (C-IP2 Senior Fellow for Entrepreneurship & Senior Scholar; Professor of Law, George Mason University Antonin Scalia Law School)

Jon M. Garon (C-IP2 Senior Scholar; Professor of Law and Director of the Intellectual Property, Cybersecurity, and Technology Law program, Nova Southeastern University Shepard Broad College of Law)

Steven D. Jamar (C-IP2 Senior Scholar; Associate Director, Institute for Intellectual Property and Social Justice (IIPSJ); Professor Emeritus, Howard University School of Law)

Lateef Mtima (C-IP2 Senior Scholar; Professor of Law, Howard University School of Law; Founder and Director, Institute for Intellectual Property and Social Justice (IIPSJ))

Loren Mulraine (C-IP2 Senior Scholar; Professor of Law, Director of Music and Entertainment Law Studies, Belmont University – College of Law)

    • Was a panelist on the February 8 Vanderbilt Journal of Entertainment and Technology Law (JETLaw) 2024 Symposium Music Law in the Music City

Seán M. O’Connor (C-IP2 Faculty Advisor; Faculty Advisor, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

Michael Risch (C-IP2 Senior Scholar; Vice Dean and Professor of Law, Villanova University Charles Widger School of Law)

    • Was quoted in January 4 Fox Business article “As other Disney characters follow Mickey Mouse to public domain, experts discuss company’s legal options”

Alexandra Jane Roberts (C-IP2 Senior Scholar; Professor of Law and Media, Northeastern University School of Law)

    • Was quoted in January 5 Northeastern Global News article “Mickey Mouse raises question: What is the difference between copyright and trademark? It’s a ‘gray’ area, expert says” about Mickey Mouse entering the public domain
    • Was quoted in January 5 Northeastern Global News article “Is Palworld, the latest gaming sensation, guilty of copyright infringement against Pokémon? A legal expert weighs in” on Nintendo’s potential copyright claims against the makers of videogame Palworld

Zvi S. Rosen (C-IP2 Scholar; Assistant Professor of Law, Southern Illinois University School of Law)

    • Was quoted in December 22 Variety article “Mickey Mouse, Long a Symbol in Copyright Wars, to Enter Public Domain: ‘It’s Finally Happening’”
    • Chapter “Copyright’s Promise of Dignity in the 19th Century” was published in The Cambridge Handbook of Intellectual Property and Social Justice, eds. Steven D. Jamar & Lateef Mtima (Cambridge: Cambridge University Press, 2024)

Dr. Stephanie M. Semler (C-IP2 Practitioner in Residence; Adjunct Professor, George Mason University, Antonin Scalia Law School; Supervising Attorney, Arts & Entertainment Advocacy Clinic)

Dr. Bhamati Viswanathan (C-IP2 Scholar; Faculty Fellow, New England Law | Boston)

Copyright: Scholarship & Other Writings

Jon M. Garon, Ethics 3.0—Attorney Responsibility in the Age of Generative AI, 79 Bus. L. 209 (2024)

Jon M. Garon, The Revolution will be Digitized: Generative AI, Synthetic Media, and the Medium of Disruption, 20 Ohio State Tech. L. J. 139 (2023)

Michael Goodyear, Infringing Information Architectures (March 5, 2024). 58 UC Davis L. Rev. (forthcoming 2025)

Camilla A. Hrdy, “Beyond the AI Black Box: Links to Articles and Interview With Charlotte Tschider,” Written Description (January 23, 2024)

Steven D. Jamar, “An Intellectual Property Social Justice Perspective on Intellectual Property Protection for Artificial Intelligence Programs,” in The Cambridge Handbook of Intellectual Property and Social Justice, eds. Steven D. Jamar & Lateef Mtima (Cambridge: Cambridge University Press, 2024), 380-400

Lateef Mtima, “Copyright and the Interdependent Relationship Between Social Utility and Social Justice,” in The Cambridge Handbook of Intellectual Property and Social Justice, eds. Steven D. Jamar & Lateef Mtima (Cambridge: Cambridge University Press, 2024), 115-130

Seán M. O’Connor, “The Lead Sheet Problem in Music Copyright: Williams and Skidmore Revealed the Systematic Diminution of Pop Music’s Aural Composers,” in The Cambridge Handbook of Intellectual Property and Social Justice, eds. Steven D. Jamar & Lateef Mtima (Cambridge: Cambridge University Press, 2024), 291-320

Zvi S. Rosen, “Copyright’s Promise of Dignity in the 19th Century,” in The Cambridge Handbook of Intellectual Property and Social Justice, eds. Steven D. Jamar & Lateef Mtima (Cambridge: Cambridge University Press, 2024), 222-242

Zvi S. Rosen, Some Thoughts on Warhol and the Future of Transformative Works, 23 Chi.-Kent J. Intell. Prop. 127 (2023).

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High Tech

High Tech: C-IP2-Hosted & Co-Hosted Events

C-IP2 December High Tech Roundtable

On December 8, 2023, C-IP2 hosted a private roundtable on “Intellectual Property and High-Tech Policy” at Scalia Law School that explored “hot topics” in the high-tech industries. Participants included several C-IP2 affiliates: Dr. Bowman Heiden, the Hon. David Kappos, John Kolakowski, David Korn, Joshua Kresh, Judge Paul Michel, Kristen Jakobsen Osenga, Michael Risch, and W. Keith Robinson. Industry leaders, government affiliates, and academics came together to discuss ongoing uncertainty concerning patent-eligible inventions and discoveries and how PERA attempts to address these issues; how the PREVAIL Act and other proposals to modify PTAB proceeds might impact the high-tech industries; and how other pending legislation/regulation in the U.S. and EU regarding injunctive relief, patent pools, and SEP licensing may change how high-tech industries do business.

IP Principles Initiative Panel & Congressional Reception

C-IP2 was pleased to co-host the C-IP2 Institutional Partner Global Innovation Policy Center’s January 30 event “IP Principles Initiative Panel & Congressional Reception” on the Hill. The principles, which several C-IP2 affiliates and scholars helped draft and also signed, were designed to change the discussion around the vital role of intellectual property rights in fostering American leadership, competitiveness, and innovation, very much aligned with C-IP2’s views.

High Tech: News & Speaking Engagements

The book 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things (Cambridge University Press, 2024), edited by Professor Jonathan Barnett and Seán O’Connor and funded by C-IP2, was published January, with a book launch event planned for April 15. Contributors include C-IP2 Advisory Board Members the Hon. Andrei Iancu, the Hon. David Kappos, and the Hon. F. Scott Kieff; C-IP2 Senior Fellow for Innovation Policy & Senior Scholar Professor Kristen Osenga; C-IP2 Senior Scholar Jonathan Barnett; and David J. Teece, Maureen K. Ohlhausen, Jana I. Seidl, Alexander Galetovic, Stephen Haber, Lew Zaretzki, J. Gregory Sidak, Ruud Peters, Igor Nikolic, Bowman Heiden, Fabian Hoffmann, Nikolaus Thumm, Jorge Padilla, Andrew Tuffin, Mark A. Cohen, and Thomas D. Grant.

On December 14, C-IP2 Advisory Board Member the Hon. David Kappos (C4IP; Cravath) participated in a virtual fireside chat hosted by the Bayh-Dole Coalition on “President Biden’s March-in Framework.”

In January, Dr. Roya Ghafele’s paper, The international dimension of the European Commission’s Standard Essential Patents (EC SEPs) policy proposal, written in connection with C-IP2’s 2023 Annual Fall Conference, was listed on SSRN’s Top Ten download list for “ERN: Regulation (European) (Topic).”

On January 24, C-IP2 Advisory Board Members and formers USPTO Directors the Hon. David Kappos and the Hon. Andrei Iancu spoke at the Bayh-Dole Coalition and Council for Innovation Promotion briefing in Washington, D.C. on the Bayh-Dole Act’s importance in U.S. innovation and the implications of the march-in rights put forward by the Biden Administration.

C-IP2 2024-2025 Edison Fellow Stefan Geirhofer moderated a panel discussion entitled “Proprietary Interfaces and Technological Tying” on February 9. The program was organized by the IP Committee of the ABA’s Antitrust section and co-sponsored by the Media & Technology Committee.

In February, C-IP2 Fellows, Scholars, and Affiliates were busy submitting comments on the NIST Draft Guidance for exercising march-in rights. We do not think the guidance would achieve the underlying goal of lowering drug pricing; instead, it would undermine the Bayh-Dole Act’s goals of commercializing public-funded research. As our comments (and many others) discuss, the guidance is not limited to drug patents; it also applies to anything with federal funding and as such should be of interest to any companies who directly accept government funding or licensing or work with any companies who do.

    • C-IP2 Senior Fellow for Life Sciences & Scholar Professor Emily Michiko Morris submitted remarks to the National Institute of Standards and Technology (NIST) that were also signed by David Grossman (C-IP2 Practitioner in Residence), Joshua Kresh (C-IP2 Interim Executive Director), Professor Seán M. O’Connor (C-IP2 Faculty Advisor), Professor Kristen Jakobsen Osenga (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar), and Professor Mark F. Schultz (C-IP2 Senior Scholar).
    • C-IP2 Senior Fellow for Innovation Policy & Senior Scholar Professor Kristen Jakobsen Osenga submitted remarks to the National Institute of Standards and Technology (NIST) on February 5.
    • The U.S. Chamber of Commerce submitted remarks that were also signed by Joshua Kresh (C-IP2 Interim Executive Director) in his own capacity, the Hon. Paul Michel (C-IP2 Advisory Board Member), and the Hon. Susan G. Braden (C-IP2 Jurist in Residence & Advisory Board Member).
    • Comments by 22 Scholars and Former Officials on Bayh-Dole Guidance Framework was submitted to the National Institute of Standards and Technology (NIST)with signees including Professor Jonathan M. Barnett (C-IP2 Senior Scholar), the Hon. Susan G. Braden (C-IP2 Jurist in Residence & Advisory Board Member), Professor Daniel R. Cahoy (C-IP2 Senior Scholar), Professor Chris Holman (C-IP2 Senior Scholar), Professor Justin (Gus) Hurwitz (C-IP2 Senior Scholar), the Hon. Andrei Iancu (C-IP2 Advisory Board Member), the Hon. Paul Michel (C-IP2 Advisory Board Member), Professor Emily Michiko Morris (C-IP2 Senior Fellow for Life Sciences & Scholar), Professor Kristen Jakobsen Osenga (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar), the Hon. Randall R. Rader (C-IP2 Advisory Board Member), and Professor Ted Sichelman (C-IP2 Senior Scholar)

The 2023-2024 Edison Fellows are in the process of finalizing their papers and submitting them to journals. Titles and summaries for a selection of these papers are included in this report, and we will feature all of the papers in upcoming reports.

    • Fidelice Opany: [Forthcoming; paper will be ready for submission in early April.]
      • Title: Collective Bargaining of Patent Licences
      • Description: This paper examines whether allowing implementers to collectively negotiate licences for standard-essential patents can alleviate patent holdup and patent holdout. It finds that, subject to establishing certain safeguards, the proposed collective bargaining framework could reduce patent holdup and patent holdout, thereby improving the licensing of standard-essential patents.

 

Jonathan Barnett (C-IP2 Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)

Chief Judge Susan G. Braden (Court of Federal Claims (Ret.); C-IP2 Jurist in Residence)

    • Signed the December 4 C4IP “Letter on Covid-19 IP waiver”
    • On December 7, attended an American Arbitration Association (AAA) program in New York City on alternative dispute resolution (ADR) in Life Science cases
    • On December 14, attended a Bayh-Dole Coalition Meeting on the “march-in” draft agency guidance notice in the Federal Register
    • On December 19, attended a United Inventors Association Board Meeting
    • On January 9, attended the ABA IP Section Council Meeting on proposed Bayh-Dole March-In Guidelines
    • Spoke on January 18 AEI panel “Intellectual Property and Biopharmaceuticals: Implications of Changes in US Protections for Clinical Data and Technology” in Washington, D.C.
    • Was an author on the January 29 United Inventors Association comments on proposed Bayh-Dole march-in guidelines
    • Was an author on the January 31 ABA IP Section Comments on proposed Bayh-Dole march-in guidelines
    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights
    • Signed February U.S. Chamber of Commerce remarks on Bayh-Dole and march-in rights
    • On February 8, attended and participated in C-IP2’s BioPharma Roundtable at Antonin Scalia Law School
    • On February 19, attended the Naples IP Roundtable and served a panelist for Panelist “PPAC at 25 Years”
    • Moderated the February 29 Federalist Society webinar “NIST’s Proposed Framework for a New Approach to Bayh-Dole March-in: What You Need to Know” with Professor Jorge Contreras (University of Utah, S.J. Quinney College of Law), Charles Crain (VP, Domestic Policy at National Association of Manufacturers), Chris Israel (Senior Partner, AGC Advocacy), and Jeffrey E. Depp, AUTM Public Policy Legal Task Force

Daniel R. Cahoy (C-IP2 Senior Scholar; Robert G. and Caroline Schwartz Professor, The Pennsylvania State University’s Smeal College of Business; Research Director, Center for the Business of Sustainability)

    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Tabrez Ebrahim (C-IP2 Scholar; Associate Professor, California Western School of Law)

    • In December, participated in a Fulbright Specialist grant trip to Jordan University of Science and Technology (JUST) in Irbid, Jordan
    • On December 17, gave a research presentation to Jordan University of Science & Technology (JUST) university administration/leadership, faculty, and graduate students entitled “Islamic Intellectual Property”
    • Gave a keynote address on “Islamic Theory of Intellectual Property Law” for the February 27-29 Middle East and North African Studies Symposium’s 10th Annual Symposium: Language and Politics in the Middle East & North Africa.

Jon M. Garon (C-IP2 Senior Scholar; Professor of Law and Director of the Intellectual Property, Cybersecurity, and Technology Law program, Nova Southeastern University Shepard Broad College of Law)

David Grossman (C-IP2 Practitioner in Residence; Senior Director of Technology Transfer & Industry Collaboration, Office of Technology Transfer, George Mason University)

    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Christopher Holman (C-IP2 Senior Fellow for Life Sciences & Senior Scholar; Professor of Law, University of Missouri-Kansas City School of Law)

    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Justin (Gus) Hurwitz (C-IP2 Senior Scholar; Senior Fellow and Academic Director, Center for Technology, Innovation, and Competition, University of Pennsylvania Carey Law School)

    • Was mentioned in December 12 The Volokh Conspiracy’s “Adventures in AI alignment” podcast recap
    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Hon. Prof. F. Scott Kieff (C-IP2 Senior Scholar; Fred C. Stevenson Research Professor, The George Washington University Law School)

    • Was quoted in November 29 IPWatchog post “Understanding IP Matters: Piracy or Policy? Maintaining U.S. Technology Leadership in the Digital Age”
    • Was mentioned in December 4 GW Law announcement “GW Law Launches its New Center for Law and Technology”

Joshua Kresh (C-IP2 Interim Executive Director)

    • Organized and led C-IP2‘s December 8 High Tech Roundtable at Scalia Law in Arlington, VA
    • With Dale Lazar, is leading the Spring 2024 edition of the Innovation Law Clinic, which this semester has nine students working with eight clients
    • On February 15, served as a moderator at the Giles S. Rich American Inn of Court (GSRAIC) program Trending Topics In Intellectual Property: Innovation Policy and Artificial Intelligence
    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights
    • Signed February U.S. Chamber of Commerce remarks on Bayh-Dole and march-in rights

Dale Lazar (C-IP2 Practitioner in Residence; Director, Patent Program, Innovation Law Clinic)

    • With Joshua Kresh, is leading the Spring 2024 edition of the Innovation Law Clinic, which this semester has nine students working with eight clients

Daryl Lim (C-IP2 Senior Scholar; H. Laddie Montague Jr. Chair in Law; Associate Dean for Research and Innovation; Founding Director, Intellectual Property Law and Innovation Initiative; and co-hire, Institute for Computational and Data Sciences, Penn State University)

    • Was quoted in January 29 Erie News Now article “Pennsylvania’s Path to Regulate Artificial Intelligence”

Hina Mehta (C-IP2 Practitioner in Residence; Director, University Commercialization Program Director, University Commercialization Program at Virginia Innovation Partnership Corporation (VIPC))

    • In December, was appointed to serve as an Expert Member of the National Academy of Sciences, Engineering, and Medicine’s Air Force Studies Board “to contribute to capacity building and technology transition for US Air Force” (Hina Mehta on LinkedIn)
    • On January 17, spoke on Technology Transfer – From Research to Real-World Impact, which was hosted virtually by Criminal Investigation Network Analysis Center, DHS funded center of excellence at George Mason University.
    • On January 23, spoke about state funding opportunities at the webinar “University Participation in SBIR/STTR”

Emily Michiko Morris (C-IP2 Senior for Life Sciences and Scholar; C-IP2 2021-2022 Edison Fellow; David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, University of Akron School of Law)

    • In February, submitted remarks to the NIST on Bayh-Dole and march-in rights

Seán M. O’Connor (C-IP2 Faculty Advisor; Faculty Advisor, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Kristen Jakobsen Osenga (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar; Associate Dean of Academic Affairs, Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

Michael Risch (C-IP2 Senior Scholar; Vice Dean and Professor of Law, Villanova University Charles Widger School of Law)

    • Participated in C-IP2‘s December 8 High Tech Roundtable at Scalia Law in Arlington, VA

W. Keith Robinson (C-IP2 Senior Scholar; Professor of Law, Wake Forest University School of Law)

Mark F. Schultz (C-IP2 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)

    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Ted Sichelman (C-IP2 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)

    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Brenda Simon (C-IP2 Senior Scholar; ProFlowers Professor of Internet Studies and Professor of Law, California Western School of Law)

Saurabh Vishnubhakat (C-IP2 Senior Scholar; Professor of Law, Yeshiva University Benjamin N. Cardozo School of Law)

    • Participated in C-IP2‘s December 8 High Tech Roundtable at Scalia Law in Arlington, VA

High Tech: Scholarship & Other Writings

Jonathan M. Barnett, “How Regulators Endanger U.S. and EU Technology Leadership in the Global Wireless Marketplace,” CSIS (February 8, 2024)

Jonathan M. Barnett and David J. Kappos, “Restoring Deterrence: The Case for Enhanced Damages in a No-Injunction Patent System,” in 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things, eds. Jonathan M. Barnett & Seán M. O’Connor (Cambridge: Cambridge University Press, 2024), 129-152

Eds. Jonathan M. Barnett and Seán M. O’Connor, 5G and Beyond Intellectual Property and Competition Policy in the Internet of Things (Cambridge: Cambridge University Press, 2024)

Camilla A. Hrdy and Daniel H. Brean, The Patent Law Origins of Science Fiction, Columbia Journal of Law & the Arts, Volume 47, Forthcoming

Andrei Iancu, Foreword: “Why Patents Are Critical for Standards-Based Technologies,” in 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things, eds. Jonathan M. Barnett & Seán M. O’Connor (Cambridge: Cambridge University Press, 2024), xi-xiv

Hon. F. Scott Kieff & Thomas D. Grant, “Patents and Competition: Commercializing Innovation in the Global Ecosystem for 5G and IoT,” in 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things, eds. Jonathan M. Barnett & Seán M. O’Connor (Cambridge: Cambridge University Press, 2024), 242-262

Kristen Osenga, “Efficient Infringement in the SEP Space,” in 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things, eds. Jonathan M. Barnett & Seán M. O’Connor (Cambridge: Cambridge University Press, 2024), 111-128

Kristen J. Osenga, “The Loss of Injunctions under eBay: Evidence of the Negative Impact on the Innovation Economy,” Hudson Institute (February 28, 2024)

Ruud Peters, Igor Nikolic, & Bowman Heiden, “Designing SEP Licensing Negotiation Groups to Reduce Patent Holdout in 5G/IoT Markets,” in 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things, eds. Jonathan M. Barnett & Seán M. O’Connor (Cambridge: Cambridge University Press, 2024), 155-174

Nicolas Petit and Bowman Heiden and Thibault Schrepel, Situating Dynamic Competition: An Evolution Beyond Chicago (January 11, 2024). Dynamic Competition Initiative (DCI) Working Paper 1-2024

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Life Sciences

Overlaid images of pills, a gloved hand of someone expecting a pill, and an eyedropper

Life Sciences: C-IP2-Hosted & Co-Hosted Events

C-IP2 Roundtable: IP and Biopharmaceutical Policy

This February 9 roundtable explores “hot topics” in the biopharmaceutical industries. Discussion topics addressed the ongoing uncertainty concerning patent-eligible inventions and discoveries and how PERA attempts to address these issues; how the policy rhetoric of “evergreening” and “patent thickets” represents attacks on incremental innovation and the commercialization of new therapeutic treatments; how the PREVAIL Act and other proposals to modify PTAB proceeds might impact the biopharmaceutical industries; the threat of government price controls being imposed under 28 U.S.C. § 1498, march-in rights, and Medicare pricing controls in the IRA.

A hallmark of C-IP2 events is that we tie all discussions about patented innovation to real-world commercial and legal issues faced by innovators and companies working in the innovation industries. Thus, this roundtable included academics, lawyers, and representatives from the bio-pharmaceutical industry.

Life Sciences: News & Speaking Engagements

Signers for the December 4 C4IP “Letter on Covid-19 IP waiver” included C-IP2 Advisory Board Members the Hon. Andrei Iancu, the Hon. David Kappos, the Hon. Paul Michel, and the Hon. Susan G. Braden (C-IP2 Jurist in Residence), as well as C-IP2 Interim Executive Director Joshua Kresh.

On December 14, C-IP2 Advisory Board Member the Hon. David Kappos (C4IP; Cravath) participated in a virtual fireside chat hosted by the Bayh-Dole Coalition on “President Biden’s March-in Framework.”

C-IP2 Jurist in Residence the Honorable Susan G. Braden and C-IP2 Advisory Board Member the Honorable Paul R. Michel both spoke on January 18 AEI panel “Intellectual Property and Biopharmaceuticals: Implications of Changes in US Protections for Clinical Data and Technology” in Washington, D.C.

On January 24, C-IP2 Advisory Board Members and formers USPTO Directors the Hon. David Kappos and the Hon. Andrei Iancu spoke at the Bayh-Dole Coalition and Council for Innovation Promotion briefing in Washington, D.C. on the Bayh-Dole Act’s importance in U.S. innovation and the implications of the march-in rights put forward by the Biden Administration.

In February, C-IP2 Fellows, Scholars, and Affiliates were busy submitting comments on the NIST Draft Guidance for exercising march-in rights. We do not think the guidance would achieve the underlying goal of lowering drug pricing; instead, it would undermine the Bayh-Dole Act’s goals of commercializing public-funded research.

    • C-IP2 Senior Fellow for Life Sciences & Scholar Professor Emily Michiko Morris submitted remarks to the National Institute of Standards and Technology (NIST) that were also signed by David Grossman (C-IP2 Practitioner in Residence), Joshua Kresh (C-IP2 Interim Executive Director), Professor Seán M. O’Connor (C-IP2 Faculty Advisor), Professor Kristen Jakobsen Osenga (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar), and Professor Mark F. Schultz (C-IP2 Senior Scholar).
    • C-IP2 Senior Fellow for Innovation Policy & Senior Scholar Professor Kristen Jakobsen Osenga submitted remarks to the National Institute of Standards and Technology (NIST) on February 5.
    • The U.S. Chamber of Commerce submitted remarks that were also signed by Joshua Kresh (C-IP2 Interim Executive Director) in his own capacity, the Hon. Paul Michel (C-IP2 Advisory Board Member), and the Hon. Susan G. Braden (C-IP2 Jurist in Residence & Advisory Board Member).
    • Comments by 22 Scholars and Former Officials on Bayh-Dole Guidance Framework was submitted to the National Institute of Standards and Technology (NIST)with signees including Professor Jonathan M. Barnett (C-IP2 Senior Scholar), the Hon. Susan G. Braden (C-IP2 Jurist in Residence & Advisory Board Member), Professor Daniel R. Cahoy (C-IP2 Senior Scholar), Professor Chris Holman (C-IP2 Senior Scholar), Professor Justin (Gus) Hurwitz (C-IP2 Senior Scholar), the Hon. Andrei Iancu (C-IP2 Advisory Board Member), the Hon. Paul Michel (C-IP2 Advisory Board Member), Professor Emily Michiko Morris (C-IP2 Senior Fellow for Life Sciences & Scholar), Professor Kristen Jakobsen Osenga (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar), the Hon. Randall R. Rader (C-IP2 Advisory Board Member), and Professor Ted Sichelman (C-IP2 Senior Scholar)

 

Dr. Kristina M. L. Acri, née Lybecker (C-IP2 Senior Scholar; John L. Knight Chair of Economics and Professor of Economics, Colorado College)

    • On December 7, Dr. Acri presented her work at the Macalester College Economics Research Seminar. Her presentation was entitled “Economic Analysis of Distorted Drug Patents,” and it drew upon her work with Professor Erika Lietzan.

Jonathan Barnett (C-IP2 Senior Scholar; Torrey H. Webb Professor of Law, USC Gould School of Law)

    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Chief Judge Susan G. Braden (Court of Federal Claims (Ret.); C-IP2 Jurist in Residence)

    • Signed the December 4 C4IP “Letter on Covid-19 IP waiver”
    • On December 7, attended an American Arbitration Association (AAA) program in New York City on alternative dispute resolution (ADR) in Life Science cases
    • On December 14, attended a Bayh-Dole Coalition Meeting on the “march-in” draft agency guidance notice in the Federal Register
    • On December 19, attended a United Inventors Association Board Meeting
    • On January 9, attended the ABA IP Section Council Meeting on proposed Bayh-Dole March-In Guidelines
    • Spoke on January 18 AEI panel “Intellectual Property and Biopharmaceuticals: Implications of Changes in US Protections for Clinical Data and Technology” in Washington, D.C.
    • Was an author on the January 29 United Inventors Association comments on proposed Bayh-Dole march-in guidelines
    • Was an author on the January 31 ABA IP Section Comments on proposed Bayh-Dole march-in guidelines
    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights
    • Signed February U.S. Chamber of Commerce remarks on Bayh-Dole and march-in rights
    • On February 8, attended and participated in C-IP2’s BioPharma Roundtable at Antonin Scalia Law School
    • On February 19, attended the Naples IP Roundtable and served a panelist for Panelist “PPAC at 25 Years”
    • Moderated the February 29 Federalist Society webinar “NIST’s Proposed Framework for a New Approach to Bayh-Dole March-in: What You Need to Know” with Professor Jorge Contreras (University of Utah, S.J. Quinney College of Law), Charles Crain (VP, Domestic Policy at National Association of Manufacturers), Chris Israel (Senior Partner, AGC Advocacy), and Jeffrey E. Depp, AUTM Public Policy Legal Task Force

Daniel R. Cahoy (C-IP2 Senior Scholar; Robert G. and Caroline Schwartz Professor, The Pennsylvania State University’s Smeal College of Business; Research Director, Center for the Business of Sustainability)

    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Tabrez Ebrahim (C-IP2 Scholar; Associate Professor, California Western School of Law)

    • On December 9, gave a research presentation on “Bioethics and Patent Policy” and participated in a panel on “Policy Implementation in Bioethics” for the 8th Annual International Conference on Ethics in the MENA: Implementing Bioethics Policies with the University of Science & Technology, Yemen and The Research Conduct of Research at Jordan University of Science & Technology (JUST)
    • On December 13, gave a seminar presentation to the Jordan University of Science & Technology (JUST) Faculty of Pharmacy and graduate students in pharmacy, medical technology, and medicinal chemistry programs entitled “Introduction to Intellectual Property Law”

Joshua Kresh (C-IP2 Interim Executive Director)

    • Signed the December 4 C4IP “Letter on Covid-19 IP waiver”
    • On February 15, spoke as a panelist at the Giles S. Rich American Inn of Court (GSRAIC) program Trending Topics In Intellectual Property: Innovation Policy and Artificial Intelligence
    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights
    • Signed February U.S. Chamber of Commerce remarks on Bayh-Dole and march-in rights

David Grossman (C-IP2 Practitioner in Residence; Senior Director of Technology Transfer & Industry Collaboration, Office of Technology Transfer, George Mason University)

    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Christopher Holman (C-IP2 Senior Fellow for Life Sciences & Senior Scholar; Professor of Law, University of Missouri-Kansas City School of Law)

    • Published December 11 Patently-O article When is the use of a product a “substantial noninfringing use” for purposes of Section 271(c)?
    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights 

Justin (Gus) Hurwitz (C-IP2 Senior Scholar; Senior Fellow and Academic Director, Center for Technology, Innovation, and Competition, University of Pennsylvania Carey Law School)

    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights 

Erika Lietzan (C-IP2 Senior Scholar; William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law, University of Missouri School of Law)

    • Was mentioned in February 2 Yale Journal of Regulation’s Notice & Comment piece “D.C. Circuit Review – Reviewed: An Early Fall”

Hina Mehta (C-IP2 Practitioner in Residence; Director, University Commercialization Program Director, University Commercialization Program at Virginia Innovation Partnership Corporation (VIPC))

    • Was quoted in January 9 EIN Presswire article “VIPC Awards CCF Grant to VCU to Advance a Novel, Non-Invasive Treatment for Brain Cancer in Humans”

Emily Michiko Morris (C-IP2 Senior for Life Sciences and Scholar; C-IP2 2021-2022 Edison Fellow; David L. Brennan Endowed Chair, Associate Professor, and Associate Director of the Center for Intellectual Property Law & Technology, University of Akron School of Law)

    • In February, submitted remarks to the NIST on Bayh-Dole and march-in rights

Seán M. O’Connor (C-IP2 Faculty Advisor; Faculty Advisor, Innovation Law Clinic; Professor of Law, George Mason University Antonin Scalia Law School)

    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Kristen Jakobsen Osenga (C-IP2 Senior Fellow for Innovation Policy & Senior Scholar; Associate Dean of Academic Affairs, Austin E. Owen Research Scholar and Professor of Law, University of Richmond School of Law)

    • Submitted remarks on Bayh-Dole and march-in rights on February 5
    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Mark F. Schultz (C-IP2 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)

    • On January 31, on behalf of the University of Akron School of Law Center for Intellectual Property & Technology and the Geneva Network, filed comments responding to the Department of Health and Human Service’s request for feedback on the proposed WHO Pandemic Preparedness Agreement
    • Signed February remarks by Professor Emily Michiko Morris and comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Ted Sichelman (C-IP2 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)

    • Signed February comments by 22 Scholars and Former Officials in response to NIST request for comments on Bayh-Dole and march-in rights

Life Sciences: Scholarship & Other Writings

Chris Holman, When is the use of a product a “substantial noninfringing use” for purposes of Section 271(c)?, Patently-O (December 11, 2023)

Camilla A. Hrdy and Daniel H. Brean, The Patent Law Origins of Science Fiction, Columbia Journal of Law & the Arts, Volume 47, Forthcoming

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