Category: Intellectual Property

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Heads Up 3D Printing and more: The Georgetown Law Journal Volume 102 Symposium: “Law in an Age of Disruptive Technology”

Folks,

As you know Gerard and I have been working up our paper Patents, Meet Napster: 3D Printing and the Digitization of Things . It will be part of The Georgetown Law Journal Volume 102 Symposium: “Law in an Age of Disruptive Technology” which will take place on Friday November 8, 2013. There will be panels about driverless cars and mass surveillance as well. We hope to see many of you there. (RSVP at this link).

It is a great honor to be part of this lineup:

Keynote Address by Professor Neal Katyal

3-D Printing
Chaired by Professors Deven Desai and Gerard Magliocca

Driverless Cars & Tort Liability
Chaired by Professor Bryant Walker Smith

Mass Surveillance Technology
Chaired by Professor Christopher Slobogin

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Announcing Symposium on Orly Lobel’s Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding

Talent Wants to be FreeThink you have enough to read? Think again! I am honored to announce that Concurring Opinions will host a symposium on Orly Lobel’s book, Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding. The event will run from Monday, November 11 to Friday, November 15. I came to know Professor Lobel’s work as I shared some of my thoughts on intellectual property, property theory, and technologically mediated creation in her seminar, Work, Welfare, and Justice, in 2008. I was thinking about who owns your email? What about work place creation? Who owns what you come up with at work? Does it matter whether you used company technology to create and learn? Professor Lobel was digging into related questions, and it has been a blast seeing her run with them. Now we have the pleasure of her book. The accolades have been coming in from academics in law and other fields as well as the business world. Business Week, Fortune, and Harvard Business Review have run articles by Professor Lobel that draw on the insights from the book.

Professor Lobel argues that as we move deeper into a world driven by human capital and talent is in increasing demand, we have to understand that a lock-down approach to innovation is a losing strategy. Nonetheless:

Many companies embrace a control mentality—relying more on patents, copyright, branding, espionage, and aggressive restrictions of their own talent and secrets than on creative energies that are waiting to be unleashed.

Unlocking talent, setting it free as she puts it, sets up a system where everyone wins. Will our discussants or you agree? I think so, but I am sure there will be new ideas and challenges during the event. Our panelists include Professor Lobel as well as:

Matt Bodie

Anupam Chander

Danielle Citron

Catherine Fisk

Vic Fleischer

Brett Frischmann

Shubha Ghosh

Ron Gilson

Peter Lee

Frank Pasquale

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Upcoming Online Symposium on Professor Anupam Chander’s The Electronic Silk Road

Silk Road coverDanielle and I are happy to announce that next week, Concurring Opinions will host an online symposium on Professor Anupam Chander’s The Electronic Silk Road: How the Web Binds the World Together in Commerce. Professor Chander is a professor at U.C. Davis’s King Hall School of Law. Senators, academics, trade representatives, and pundits laud the book for its clarity and the argument Professor Chander makes. He examines how the law can facilitate commerce by reducing trade barriers but argues that consumer interests need not be sacrificed:

On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world?

But will the book hold up under our panel’s scrutiny? I think so but only after some probing and dialogue.

Our Panelists include Professor Chander as well as:

Paul Berman

Miriam Cherry

Graeme Dinwoodie

Nicklas Lundblad

Frank Pasquale

Pierluigi Perri

Adam Thierer

Haochen Sun

Fred Tung

And of course

Danielle Citron and I will be there too.

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Stanford Law Review Online: Biomedical Patents at the Supreme Court: A Path Forward

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Professor Arti K. Rai entitled Biomedical Patents at the Supreme Court: A Path Forward. Professor Rai argues that:

While the Supreme Court’s opinions rightly focus on innovation, they fall short in their efforts to prescribe how patent eligibility can be used to promote innovation goals. Critics have bemoaned the uncertainty created by the Court’s decisions. The Mayo case in particular has prompted justifiable concern that its resuscitation of old, and long-criticized, approaches to subject matter eligibility will undermine the promise of personalized medicine.

She concludes:

Without a doubt, the Court’s recent spate of activity in the area of patent eligibility and diagnostic patenting has caused considerable anxiety for those concerned about innovation. Ideally, the question of subject matter eligibility would have been addressed more fully decades earlier. At least on the reading advanced here, however, the Court’s opinions may not pose the barrier to innovation that some fear.

Read the full article, Biomedical Patents at the Supreme Court: A Path Forward at the Stanford Law Review Online.

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MMM 3D Printing: It’s magic! But may need some help from the law

As Gerard noted, we have posted our draft of our paper “Patents, Meet Napster: 3D Printing and the Digitization of Things. The area is much fun. Along the way, claims about maybe possible became, oh they’re doing that? OK. Fix the draft and cite. Guns, compounding chemicals, low-temperature metals, oh my. The technology has moved and continues to move in many different ways. The paper has some doctrine, some science and technology studies, and some just plain old wow that’s wild technology. We are excited for the symposium at Georgetown, and we have time to edit and develop. We would love feedback about the legal implications and the technology.

Here’s the abstract perhaps to whet your appetite:

Abstract:
Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers dropped, individuals engaged with copyrighted work as never before. The business-to-business models of industrial copyright faltered and in some cases failed. Industries had to reorganize, and claimed foundations for copyright had to be re-examined. This Article examines a prime example the next phase of digitization: 3D printing and it implications on intellectual property law and practice.

3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain—sharing the plans on how to make something in exchange for exclusivity—may be meaningless in a world of digitized things. While these devices will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will force firms to rethink their business practices and courts to reexamine not only patent doctrine but also long established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and takedown provisions of the Digital Millennium Copyright Act to websites that host software enabling the 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now.

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Rent books on Amazon? Hmm.

As I work away on 3D printing I am looking at regulation literature. Ayres and Braithwaite’s Responsive Regulation is available on Amazon for 34.99 for Kindle or you can rent it starting at $14.73 (no kidding, it is that precise). There is a calendar and you can select the length of the rental (3 months comes out to $22.30 and to Amazon’s credit hover over a date and the price appears rather than having to click each date). On the one hand this offering seems rather nifty. Yet I wonder what arguments about market availability and fair use will be made with this sort of rental model for books in play. And this option brings us one step closer to perfect price discrimination. Would I see the same rental price as someone else? Would I need some research assistant to rent for me? Would that person’s price model be forever altered based on some brief period of working for a professor? What about librarians who rent books for work (I suppose work accounts would be differentiated but the overlap between interests may shift what that person sees on a personal account too). Perhaps Ayres and Braithwaite’s regulation pyramid is needed yet again.

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Paper Patents

I want to flag an important new patent article written by John Duffy that just came out in the Cornell Law Review called “Reviving the Paper Patent Doctrine,” 99 Cornell L. Rev. 1359 (2013).  (There is no link to the article yet.)  I heard Professor Duffy talk about this issue a few years ago, and was deeply impressed.  Here is the abstract:

“One of the most interesting developments in patent law during the last century is the catastrophic collapse of the paper patent doctrine, which had authorized courts to discriminate against patents that were never success- fully practiced by their patentees. The doctrine’s demise opened the door for the dramatic and controversial rise in patent litigation by “nonpracticing entities” or “patent trolls”–entities that, in the words of President Obama, “don’t actually produce anything themselves.” This Article undertakes a comprehensive review of this lost doc- trine and shows that the doctrine took a balanced approach, hurting patentees who never developed their techno- logies but helping those who had. The doctrine declined because it could not be reconciled with the theoretically impoverished views about information disclosure embraced by courts of the late twentieth century. With the advent of more sophisticated theories about the value of learning-by-doing and, more generally, about the problems asso- ciated with generating and disseminating information, the paper patent doctrine now has what it lacked in the past–a solid theory for favoring patents that were taught not just through paper disclosure but also by real-world practice. This Article concludes that the paper patent doctrine should be revived and that existing case law provides a sufficient foundation for a revival.”

I’m going to go out on a limb and say that I think this will be one of the most influential articles written in IP this year.

 

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What Are the Limits to What Hackers Produce?

I’m writing this from an airplane somewhere over the US-Canadian border. I forgot my copy of Coding Freedom at home, and was cursing my ineptitude. But then it occurred to me that, given the subject, I could probably find a copy online. Sure enough, I downloaded a pdf via the airport wifi. (For free! – those Canadians…).

This, in the most mundane of ways, is a simple reenactment of what Gabriella Coleman writes of so compellingly in her new book. Gabriella, inspired no doubt in part by her years of exposure to hacking culture, struck a deal with her publishers. The resulting CC license gives all of us who might want to read the book more freedom to do what we want with it – read it on any device, search it, and even pull it up in an airport so we can file a nearly-too-late contribution to a terrific online discussion. Gabriella didn’t know I’d forget my book at home when she decided to negotiate the license. But she did have the sense – I assume – that she needed something more than copyright law to help her achieve what she wanted from her book. Which was in part to give to the rest of us more freedom than standard copyright law would allow.

But how far does that freedom go? This is surely one of the most important and interesting questions about this new form of making software, and the new legal forms that attend it. So that’s what I want to focus on here. One of the book’s great strengths is the spectacularly detailed and clear-eyed account that it provides of hacker culture, or at least a certain hacker culture. As it points out, this is a culture that is built upon a deep commitment to the pleasures of technology (like Ed Felten, I loved the bit on hacker humor), a ferocious conception of self-help and meritocratic ordering, and also to an overt aversion to things “political.”

As a few others have in the course of this discussion, I wonder too about the limits of a form of practical revolution that starts here. How far can this new mode of production take us, if it is characterized by technoelitism, an aversion to politics, and by a subject position that is decidedly fairly privileged and high-skilled? After all, you can’t be part of this crowd and lack access to a computer and internet connection, or be bereft of free time.

 

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