I took a deeper dive into the Biden executive order on competition looking at the intellectual property-specific provisions of the EO. There’s a lot to like, and the administration zeroes in on anticompetitive practices like right-to-repair and reverse payment settlements in the pharmaceutical space. It also looks to undo the Trump administration’s previous statements on patents and antitrust, in addition to getting rid of a regulation which would make the exercise of march-in rights even more difficult.
News and Commentary
Writing for Research Enterprise, Gerald Barnett has a seven-part series discussing the history of federal policy related to patent assignment and open access technology. In the first post, he discusses the early history of patent ownership for inventions developed by government employees, discussing the Truman Administration’s 1950 executive order requiring inventions made using government resources to be assigned to the government. In the second, he discusses the logic of university patenting, arguing that universities use patents as a mechanism to raise money and generate prestige rather than develop their own non-financially motivated technology transfer mechanisms. In the third, he discusses Federal Security Agency Order 110-1, which was designed to make sure grants of public money were “utilized in the manner which would best serve the public interest” and how future agency policies shifted toward licensing and commercialization rather than open-access utilization. He continues in the fourth post discussing how Howard Forman shifted the focus of the FSA order by advocating for a “more is more” approach as it relates to patenting and the increased “utilization” of inventions. The fifth and sixth posts discuss the universe of possible patent use arrangements and the “middle ground” of ad-hoc arrangements related to exclusive use. Finally, he closes by discussing how the “middle ground” of open access as a rule and exclusive licensing as the exception fails because there are few guardrails to ensure that the patenting is not abused.
MSF has put out a press release calling for EU member states to stop “filibustering” at the WTO and get serious about negotiating for a waiver. It discusses how not only vaccines, but also other treatments, are in short supply in developing countries and how a TRIPS waiver would give member states in such countries the leverage necessary to not only negotiate licenses but also expand their own medical manufacturing capacity.
Bad news: Judge Jed Rakoff in the Southern District of New York has rejected an argument for the “server test,” where liability for any copyright infringement (or lack thereof) goes to the website which actually hosts the content, rather than the one which displays it. He found that this goes against the text and legislative history of the Copyright Act as it relates to an author’s “display” rights.
Writing in PatentlyO, Dennis Crouch discusses a motion to intervene by a group of doctors, patients, and shareholders of the company Amarin after the latter’s patents were invalidated in district court. The ruling was upheld by the Federal Circuit. The collective in support of Amarin argues that “[t]he invalidation of Amarin’s patents could potentially cost hundreds of thousands of American lives, as Amarin has been deprived of the incentive to promote Vascepa in the U.S., and Defendants can neither sell generic Vascepa to a large segment of the patient population, nor promote generic Vascepa, as those activities would violate Amarin’s other patents.”
Mike Masnick for Techdirt writes about the viral video of Dutch runner Sifan Hassan falling only to get up and win her event being taken down for alleged copyright violations. It is not who filed the complaint that led to the video taking down, but the whole affair is rather silly and serves only to limit viewership of the Olympics.
Though Google’s victory in Google v. Oracle was a win for copyright, interoperability, and competition in software, it still left open the question of whether or not application programming interfaces (APIs) are eligible for copyright protection. Technically, the Federal Circuit’s finding that they are still stands. But Mark Lemley and Pamela Samuelson argue in a new article that interfaces should not be eligible for copyright protection and that ensuring they aren’t would go a long way to ensure interoperability and innovation in the technology industry.