News and Commentary
The Niskanen Center has proudly joined a letter with a group of copyright reformers encouraging the Biden Administration to ensure that discussions of a TRIPS waiver–which the administration supported last May–include copyright reforms. Though patents have been the main focus of the debate surrounding IP rights in the pandemic, copyright plays an important role when it comes to access to information, the ability to repair critical infrastructure, and the marketing of generic drugs.
Aaron Wininger has a writeup of the Chinese Communist Party’s “Guidelines for Building a Powerful Country with Intellectual Property Rights (2021-2035)”. The guidelines include a push to patent in cutting-edge industries, participation in global intellectual property governance, and ensuring the growth of patent- and copyright-intensive industries. Though China was, until relatively recently, a pirate nation, as its economy has matured it is more comfortable playing within the rules of the global IP system. This is problematic, as a Communist China which benefits from the use of legal tools to block technological development could leverage that power to harm foreign industries.
Juan Londoño of the American Action Forum has an interesting essay on online copyright enforcement, the DMCA, fair use, and the debate between rights holders, streamers and platforms. He outlines the problems alleged by major rights holders of piracy on platforms like Twitch and Youtube, but finds proposals to change the law and increase the legal requirements on platforms to maintain safe harbor protection to be lacking because they would place an unfair burden on users to prove their innocence. You can read Douglas Holtz-Eakin’s analysis of this essay here.
In Research Enterprise, Gerald Barnett has a long post about the history of the Bayh-Dole Act during the Regan administration and how the White House dramatically expanded the scope of which entities could have a patent assigned to them (virtually any) and also allowed agencies to waive certain conditions of the Bayh-Dole Act in their contracts–including march-in rights, a safeguard to ensure a good return for the public in their inventions. It also discusses the problematic abuse of the system to confuse whether the government “paid” for an invention (making Bayh-Dole inapplicable) or whether an invention was conceived in the course of a government contract. The former interpretation would allow a clever accountant to move money around and keep as many patents as possible outside the reach of Bayh-Dole’s (toothless) safeguards, but the latter, correct, interpretation would cover any inventions that are made in the course of a federal contract.
The New York Times has coverage of the current shortage of Moderna vaccines around the world and the company’s inability (or unwillingness) to expand access. Though Moderna has committed to contribute almost half a billion doses to the Covax program, it has yet to contribute. It is also charging almost $30 a dose to some countries which have ordered it, more than the U.S. government paid for it.
Dennis Crouch in PatentlyO has coverage of a bill introduced by Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) called the “Pride in Patent Ownership Act”, which increases the transparency of patent ownership by requiring owners to record such ownership or lose their ability to recover punitive damages in patent litigation. It also requires the disclosure of any government (foreign or U.S.) support for filing, prosecution, or maintenance of the patent.
New Research
Colleen Chien, Janelle Barbier, and Obie Reynolds have a new paper in Patently-O Patent Law Journal on the implications of the AIA’s changes to patent law on its 10th anniversary. In it, she discusses the difference between patents filed before the effective date of the AIA, which will expire in 2033, and those filed after. Though the pre-2013 patents are “old law” in a sense, they’re still relevant to the current practice of patent law. They found that 90% of patent litigation actions started in 2020 were from pre-AIA patents, and that the prior art rules of the pre-AIA regime are still important and will be for a while.
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