News and Commentary
I am interviewed in Bloomberg Law discussing the newest text of the TRIPS waiver on COVID-related intellectual property. In my view, the narrowing of the scope of the waiver shows that the proposal “has legs” and there are serious efforts being made to make it real instead of it being a moonshot proposal.
Brink Lindsey writes for the Brookings Institution about the underlying logic of intellectual property and why it simply doesn’t work in a pandemic. Speed is of the essence, and a system designed to slow the diffusion of progress so there’s more progress to diffuse simply doesn’t work in a crisis. This is especially the case when there are other tools like Operation Warp Speed which have performed spectacularly and make patent protection redundant at best.
In The New Republic, Alexander Zaitchik discusses the history of TRIPS and the WTO, specifically focusing on the history of drug patents. While patents on drugs themselves are a new invention, they were promoted by pharmaceutical manufacturers as a means to expand control over products. As the WTO grew and expanded, pharmaceutical manufacturers leveraged their influence in developed nations to, in turn, leverage their influence to create TRIPS as a means to exclude developing countries from using technologies which were previously free to use because they were ineligible for patent protection.
Writing for SCOTUSBlog, Mitchell Jagodinski discusses two cases the Supreme Court has granted cert related to copyright. The first, Unicolors, Inc v. H&M Hennes & Mauritz, LP, has to do with Section 411(b) of the Copyright Act, and asks whether or not the Ninth Circuit erred in mandating referral to the copyright office if there is no evidence of fraud or material error in a registration. The second, Fischer v. Forrest, asks the court to determine what “copyright management information” under 17 USC 1202 means in light of a split between the Second and Third and Fifth Circuits.
Writing for Reuters, Philip Blenkinsop discusses comments made by WTO Director-General Ngozi Okonjo-Iweala saying that a TRIPS waiver would be an insufficient solution to the current pandemic. However, she added that she is “convinced that we can agree a text that gives developing countries that kind of access and flexibility, whilst protecting research and innovation.”
A new paper from the National Bureau of Economic research looks at when patents lead to follow-on innovation. They find that stronger patents yield more follow-on innovation based on citations, and that those effects are increased for smaller firms and startups. This provides evidence of the “market-making” power of patents as an alternative strategy for those without the ability to commercialize.
Barton Beebee has an update of his previous study on fair use since 1978, including data from 2005 to 2019. He finds that fair use analysis from 2005 has remained largely consistent, with the fourth factor (market harms) dominating analysis along with a recovery of the focus on transformativeness. In a summary of the article, Michael Goodyear discusses how lower courts have used previous precedent which found market effects to be the most important factor, even though newer decisions have centered transformativeness and clarified that the effect on the market for the work is one of the four factors involved.