Policy Writing

Policy Briefs & Issue Papers

C-IP2 scholars play an active role in the intellectual property policy debate, writing numerous policy briefs and issue papers about intellectual property rights and the technological, commercial, and creative innovation they facilitate.

Below are some selected highlights.


Recent Highlights

Eric M. Solovy and Deepak Raju, Recent Threats to Global Trade Secret Protection: Why Compulsory Licensing Is Not (and Should Not Be) a Viable Legal Option (Ctr. for Intell. Prot. x Innov. Pol. Oct. 2021)

In this C-IP2 Policy Brief, Eric M. Solovy and Deepak Raju look at the international and domestic law of trade secret protection and the potential for compulsory licensing of this type of IP right. In the wake of the COVID-19 pandemic, there has been increased discussion about waiving IP rights, including trade secrets, in an attempt to speed access to vaccines and other medicines. Mr. Solovy and Mr. Raju discuss the purpose and importance of trade secret protection, and why compulsory licensing of undisclosed information protected as trade secrets is not possible under current international and domestic laws.

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

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

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

In this CPIP policy brief, Joanna Shepherd, Vice Dean and Thomas Simmons Professor of Law at Emory University School of Law, discusses the practice of so-called “product hopping,” where a pharmaceutical company turns its focus to newer versions of its existing drugs. Prof. Shepherd explains that the product hopping phenomenon is incentivized by the legal and industry framework in which pharmaceutical companies operate. She looks at the existing case law on whether the practice violates antitrust law to find points of agreement, and she uses that synthesis to suggest considerations for future legislative efforts to balance the needs of consumers and producers. Finally, Prof. Shepherd warns that any legislation aimed at product hopping should be cautious so as not to ultimately harm consumers, reduce innovation, and increase health care spending.

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

This CPIP policy brief by CPIP Senior Fellow for Innovation Policy Jonathan Barnett looks at how the Blackberry litigation and the “patent troll” narrative ultimately contributed to the Supreme Court’s 2006 decision in eBay v. MercExchange that limited the availability of injunctive relief for successful patentees. Prof. Barnett then examines the problematic legacy of the post-eBay case law, which significantly shifted the legal infrastructure supporting the U.S. innovation markets. In particular, he explains how this shift has led to opportunistic infringement that favors downstream incumbents with the resources to fund extensive litigation at the expense of upstream innovators—a dynamic that is exemplified in the recent litigation between Sonos and Google.

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

In this CPIP policy brief, CPIP Senior Fellow for Innovation Policy Jonathan Barnett highlights some cracks that have emerged in the recent policy consensus that the U.S. patent system is “broken” and it is necessary to “fix” it. Policymakers have long operated on the basis of mostly unquestioned assumptions about the supposed explosion of low quality patents and the concomitant patent litigation that purportedly threaten the foundation of the innovation ecosystem. These assumptions have led to real-world policy actions that have weakened patent rights. But as Prof. Barnett discusses in the policy brief, that “groupthink” is now eroding as empirical evidence shows that the rhetoric doesn’t quite match up to the reality. This has translated into incremental but significant movements away from the patent-skeptical trajectory that has prevailed at the Supreme Court, the USPTO, and the federal antitrust agencies.


Policy Briefs & Issue Papers A to Z

Sandra Aistars, Devlin Hartline, & Mark Schultz, Copyright Principles and Priorities to Foster a Creative Digital Marketplace (Ctr. for the Prot. of Intell. Prop. Dec. 2015)

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

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

Bruce Boyden, The Failure of the DMCA Notice and Takedown System: A Twentieth Century Solution to a Twenty-First Century Problem (Ctr. for the Prot. of Intell. Prop. Dec. 2013)

Ross E. Davies, Ebb and Flow in Safe Harbors: Some Exemplary Experiences Under One Old Statute and One New (Ctr. for the Prot. of Intell. Prop. Sept. 2020)

Greg Dolin, The Costs of Patent “Reform”: The Abuse of the PTO’s Administrative Review Programs (Ctr. for the Prot. of Intell. Prop. Dec. 2014)

Greg Dolin, Resolving the Patent-Antitrust Paradox: Promoting Consumer Welfare Through Innovation (Ctr. for the Prot. of Intell. Prop. May 2013)

Richard A. Epstein, Curbing the Abuses of China’s Anti-Monopoly Law: An Indictment and Reform Agenda (Ctr. for the Prot. of Intell. Prop. Dec. 2014)

Richard A. Epstein, The Dangerous Adventurism of the United States Trade Representative: Lifting The Ban Against Apple Products Unnecessarily Opens A Can Of Worms In Patent Law (Ctr. for the Prot. of Intell. Prop. Aug. 2013)

Devlin Hartline & Matthew Barblan, Debunking the Royalty Stacking Theory: Real-World Evidence From the Mobile Wireless Industry (Ctr. for the Prot. of Intell. Prop. Jan. 2016)

Devlin Hartline & Matthew Barblan, Protecting Authors and Artists by Closing the Streaming Loophole (Ctr. for the Prot. of Intell. Prop. Oct. 2015)

Christopher M. Holman, The Critical Role of Patents in the Development, Commercialization, and Utilization of Innovative Genetic Diagnostic Tests (Ctr. for the Prot. of Intell. Prop. July 2014)

Christopher M. Holman, An Unwise Move to Discriminate Against Pharmaceutical Patents: Responding to the UN’s Guidelines for Pharmaceutical Patent Examination (Ctr. for the Prot. of Intell. Prop. June 2018)

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

Keith Mallinson, Busting Smartphone Patent Licensing Myths (Ctr. for the Prot. of Intell. Prop. Sept. 2015)

Amanda Maxham, The Gene Revolution (Ctr. for the Prot. of Intell. Prop. Nov. 2015)

Adam Mossoff, A Brief History of Software Patents (And Why They’re Valid) (Ctr. for the Prot. of Intell. Prop. Sept. 2013)

Sean M. O’Connor, The Internet Does Not Reset the Copyright-Free Speech Balance (Ctr. for the Prot. of Intell. Prop. Nov. 2013)

Kristen Osenga, Saving Functional Claiming: The Mismatch of § 112 Reform in the § 101 Reform Debate (Hudson Inst. Jan. 2020)

Mark Schultz, Stephen Ezell, & David Lund (eds.), Innovate4Health: How Innovators Are Solving Global Health Challenges (Ctr. for the Prot. of Intell. Prop. Apr. 2018)

Mark Schultz & Kevin Madigan, The Long Wait for Innovation: The Global Patent Pendency Problem (Ctr. for the Prot. of Intell. Prop. Oct. 2016)

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

Eric M. Solovy and Deepak Raju, Recent Threats to Global Trade Secret Protection: Why Compulsory Licensing Is Not (and Should Not Be) a Viable Legal Option (Ctr. for Intell. Prot. x Innov. Pol. Oct. 2021)

Saurabh Vishnubhakat, The Commercial Value of Software Patents in the High-Tech Industry (Ctr. for the Prot. of Intell. Prop. May 2015)

Bhamati Viswanathan & Adam Mossoff, Open-Access Mandates and the Seductively False Promise of “Free” (Ctr. for the Prot. of Intell. Prop. Apr. 2017)

John F. Witherspoon, A Tribute to Judge Giles S. Rich (Ctr. for the Prot. of Intell. Prop. Apr. 2017)


Essays & Op-Eds

C-IP2 scholars play an active role in the intellectual property policy debate, writing numerous op-eds and essays about intellectual property rights and the technological, commercial, and creative innovation they facilitate. These essays and op-eds have been published in a wide variety of media sources.

Below are some selected highlights.


2021 Essays & Op-Eds

Jonathan M. Barnett
Time to Punish Big Tech’s IP Theft
AL DIA Opinion
November 16, 2021

Kristen Osenga
FTC strays from fact-based enforcement and rule of law
The Hill
November 16, 2021

Tabrez Y. Ebrahim
Guest Post: Patents In Islamic Law
Patently-O
November 3, 2021

Kristen Osenga
COVID Vaccine IP Waiver: A Pathway to Fewer, Not More, Vaccines
Released by the Regulatory Transparency Project of the Federalist Society
October 28, 2021

Kristen Osenga
Changing the Story: Artificial Intelligence and Patent Eligibility
Just Security
October 25, 2021

Kristen Osenga et al
Putting Innovation First: The “New Madison Approach” to Patent Licensing and Antitrust
Released by the Regulatory Transparency Project of the Federalist Society
October 19, 2021

Camilla Hrdy
Courtney Cox on Trade Secrets and Lying
Written Description
October 10, 2021

Kristen Osenga
Big Tech’s IP theft a common problem with a high cost
Richmond Times Dispatch
September 26, 2021

Ted Sichelman
Should Noncompete Clauses for Executives Be Legal?
The Wall Street Journal
September 22, 2021

Mark F. Schultz
Trade Secrecy and Covid-19: How trade secrets and other IPRs underpin innovation and manufacturing of Covid-19 Vaccines
Geneva Network
September 2021

Jonathan M. Barnett
Startup Exit Strategies in the New Antitrust Era
Bloomberg Law
August 11, 2021

Jonathan M. Barnett
Old Ideas and the New New Deal
Truth on the Market
August 2, 2021

Jonathan M. Barnett and Ted Sichelman
The flawed case against noncompetes
The Hill
July 29, 2021

Kristen Osenga
Putting Together a Competitive Puzzle: How to Understand and Assemble the Pieces of the New Madison Approach
CPI Antitrust Chronicle
July 27, 2021

Prashant Reddy T. and Yogesh Pai
What’s the point of continuing a discussion on the unworkable TRIPs COVID-19 waiver proposal?
The IPKat Blog
July 13, 2021

Eric Claeys
Covid-19 and Intellectual Property Rights
Law & Liberty and VBLSA
July 6, 2021

Jonathan M. Barnett
Going Back to Antitrust Basics
Truth on the Market
July 1, 2021

Jonathan M. Barnett
How IP Rights Keep Markets Free
Hudson Institute
June 9, 2021

Kristen Osenga
We Must Win the Race to 5G
InsideSources
June 4, 2021

Jonathan M. Barnett
Anti-innovation Policy
Center for Strategic & International Studies
June 4, 2021

Jonathan M. Barnett
Why Big Tech Likes Weak IP
Cato Institute
Spring 2021

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

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

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

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

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

Kristen Osenga
Online Symposium: Prof. Osenga’s Top 2020 Federal Circuit Patent Decisions
FedCircuitBlog
March 30, 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
March 25, 2021

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

Mark Schultz
The EU can put trust back into online commerce
The Brussels Times
March 6, 2021

Jonathan Barnett
Investors and Regulators Can Both Fall for Platform Bubbles
Truth on the Market
March 2, 2021

Jonathan Barnett
Antitrust by Fiat
Truth on the Market
February 23, 2021

Jonathan Barnett
How FTC v. Qualcomm Led to the Nvidia-Arm Acquisition
Truth on the Market
February 17, 2021

Mark Schultz
IP System Has Brought Light To The Tunnel — Mark Schultz
CodeBlue
February 2, 2021

Jonathan Barnett
How Patents Enable Mavericks and Challenge Incumbents
IPWatchdog
January 24, 2021


Past Essays & Op-Eds