This Week in Intellectual Property, May 18th

This Week in Intellectual Property, May 18th

News and Commentary

The Niskanen Center has come out in support of the Biden Administration’s announcement in support of a TRIPS waiver for intellectual property enforcement during the COVID pandemic. While the Administration hasn’t announced support for the waiver introduced last October, the news is exciting and a major component of the capacity-expanding measures needed to fight COVID-19.

There has been considerable opposition to the TRIPS waiver, but those efforts are misguided and do not fully appreciate the costs associated with intellectual property specifically as a tool to promote innovation policy. Brink Lindsey and I discuss the mistakes critics of the TRIPS waiver make in their criticisms.

An article from Timothy Geigner from Techdirt discusses an issue raised by the blog Plagiarism Today about fraudulent DMCA takedown notices sent to websites by those who own websites posting the allegedly infringing content by backdating copies, presenting them as the real thing. This is a serious flaw with the DMCA that has been exploited by scammers.

For Research Enterprise, Gerald Barnett discusses how difficult it is to exercise March-In rights in practice, considering the lack of public appeals, the discretionary nature of application by the relevant federal agency, and the general misunderstanding of the broad scope that a reasonable reading of “practical application” means based on the text of the law. However, he does offer some hope on the ability of the federal government to exercise¬†its rights under the Bayh-Dole Act (which are separate from the rights of those in the non-governmental market) and the potential for other countries to attach march-in-esque requirements to receive patents in their own laws.

I am in Bloomberg Law discussing what the Biden Administration’s announcement in support of a TRIPS waiver means for the yet-to-be-announced nominee for USPTO director. The announcement of a waiver signals the recognition that sometimes intellectual property is best understood as “red tape” and that this is a positive sign for a USPTO director who will undo policies which make it harder to eliminate bad patents or make it easier for them to be granted.

The Electronic Frontier Foundation has filed a lawsuit against the anti-cheating company Proctorio, which filed bad-faith DMCA takedown notices against Erik Johnson, who pasted code from the application online and received a takedown notice for what was clearly fair use. EFF is pursuing a claim under Section 512(f), which deals with misrepresentations in DMCA takedown notices.


New Research

A new paper from the National Bureau of Economic Research examines the benefits of a “conventional” solicitation approach for contracts (searching for a specific technology) versus an “open” solicitation (inviting new firms to suggest technologies) in the context of the U.S. Air Force’s Small Business Innovation Research project. They find that the “open” model attracts new firms which leads to further venture capital investment, patenting, and other defense contracts.

Another paper examines the effects of early-age interventions to promote those with high inventive potential but low opportunities has significant beneficial effects in human capital–and thus innovation–development, whereas demand-side policies to subsidies R&D, while beneficial, may also drive up the cost of innovation rather than simply increasing output.


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By |2021-05-23T23:20:01-07:00May 18th, 2021|Blog, Intellectual Property|