News and Commentary
Juan Londoño has a primer for the American Action Forum about right-to-repair measures discussed in President Biden’s executive order on competition. He is overly generous when dealing with arguments against right to repair (such as alleged repetitional harms to original equipment manufacturers, or OEMs, having their reputations damaged due to independent repair), though he does discuss increased licensing of independent repair shops as a positive idea. This is a good start, though a robust right-to-repair regime would make it so consumers and repair shops do not need to rely on OEMs largesse.
The USPTO has put out guidance on how it will manage the Patent Trial and Appeal Board following the Arthrex decision outlining procedures for sua sponte review by the USPTO Director.
In Techdirt writing for patent quality week, Charles Duan writes about the role intellectual property played during the pandemic–or rather, the role it didn’t play. He argues that as the COVID booster market matures you may see increased patent litigation, the COVID response was an example of decentralized innovation made possible by a more casual approach to intellectual property enforcement. Aggressive enforcement of IP rights would have seriously hindered the response, making patent quality and measures like compulsory licensing important policies to keep in mind.
Also in Techdirt writing about patent quality week are Priti Krishtel and Tahir Amin, discussing measures the Biden administration should take to make our patent system more equitable. These suggestions include defining the USPTO’s “customers” to include a broader representation of the general public, raising the bar for patent eligibility, and undoing current discretionary denial policies for inter partes review.
In IAM, Garrard R Beeney and Renata B Hesse discuss common criticisms of patent pools and why they don’t work. Though the devil is in the details for each particular pool, they find that if there is an increase in standard essential patents, patent pools make it so the licensing process is streamlined and members of the pool can effectively participate without worrying about the costs of negotiating bilateral licensing agreements.
I am interviewed in Bloomberg Law discussing the implications of a recent deal between Pfizer and South Africa’s Biovac institute to manufacture up to 100 million doses per year on a potential TRIPS waiver. While this news is very, very good, agreements like this would need to emerge left and right to make a TRIPS waiver irrelevant.
In IPKat, Hayleigh Bosher reviews The Copyright/Trademark Interface: How the Expansion of Trademark Protection is Stifling Cultural Creativity, a book discussing how the expanded reach of trademark law into territory once exclusively occupied by copyright creates different legal rules with the effect of stifling creative expression.
A new paper from the South Centre discusses the history of TRIPS, its effects on the global south, and the push for a waiver at the WTO. It argues that a waiver could dramatically rebalance the global intellectual property system in a way which is more equitable to the developing world, and that the push for a TRIPS waiver should be done simultaneously with investment in drug manufacturing capacity.