This Week in Intellectual Property, August 17th

This Week in Intellectual Property, August 17th

News and Commentary

Writing for The Washington Post, Professor Robin Feldman discusses how the oft-cited justification for the patent system as a way for drug companies to help compensate for failed drug development undermines whatever benefits the patent system may provide. The goal of any system of subsidies should be to encourage firms to succeed, but designing a patent system to compensate for failure, in the words of Feldman, “then the more a company fails, the longer and broader of a monopoly they’ll need when they do succeed.”

In Techdirt, EFF’s Katharine Trendacosta writes about how large tech companies will often concede to the demands of large rightsholders in the face of allegations of mass piracy, YouTube being the most obvious example with the creation of ContentID. She argues that while it’s often the path of least resistance (especially compared to the risk of further regulation or winnowing down the protections provided by the DMCA), it most often results in large platforms monetizing what shouldn’t be monetized and throwing users of those platforms under the bus.

Writing for Research Enterprise, Gerald Barnett continues his series of posts about the history of access to the fruits of government-financed innovation. He discusses FSA policy 110, and how it’s easy to contort the goal of a policy which seeks to promote widespread adoption into assuming that privatization and patenting is the default. He further elaborates on how the “middle ground” of accommodating (or even preferring) patent use but putting in the creation of safeguards to prevent patent abuse, and the shortcomings of such a framing. The next post discusses how the financial benefits of the right to exclude (or rather, demand royalty payments) was picked up on by investors and universities as a money-making opportunity, laying the groundwork for what would become the Bayh-Dole Act.

Writing for The Nation, Maria Bustillos writes about the current failure of copyright law to adapt to the digital age by preventing the purchase of online works. This is a continuation of the idea of “the end of ownership” where the quirks of copyright law only allow for licensing tube possible as it relates to e-books and other works in the online world. She argues that we need a copyright regime where it is possible for the purchasers of protected works to own them outright as it is possible for them to do in the physical world.

The Copia Institute has written a case study about online content moderation related to Twitter policing copyright infringement. It discusses how Ravi Shankar Prasad, India’s technology minister, had received a DMCA takedown request. This case is interesting not only for the notoriety of the recipient, but because Prasad used the case as an example of Twitter silencing him, even though all Twitter did was comply with a routine procedure initiated by a rights holder.

A VoxEU column examines the incentives to innovate following FTC v Actavis, in which the Supreme Court affirmed the FTC’s power to go after pay-for-delay agreements as anticompetitive conduct. While pay-for-delay agreements increase market exclusivity and, under the logic of the patent system, would increase the incentives to innovate, the authors found that post-Actavis there was an increase in innovative activities as firms faced competitive pressure to preserve their market power.


New Research

An article for Economics of Innovation and New Technology examines how corporate commitments to social responsibility impacts technology sharing. They find that firms which are committed to corporate social responsibility freely share their R&D findings even without cooperative investment decisions.

A new paper from Value in Health examines the price variation among branded drugs in the United States. It found that there is significant variation between branded drugs, and that list price is a bad representation for the net price of a drug.

The South Centre has published a paper linking the history of colonialism in Africa and the resultant protectionism to TRIPS, and argues that the best way for African countries to overcome this legacy is through the grant of the waiver proposed in the WTO.

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By |2021-08-17T15:07:55-07:00August 17th, 2021|Blog, Intellectual Property|