Biden Decision on COVID Vaccine Patent Waivers is More About Global Leadership than IP

By Professor Justin Hughes

Back in October 2020 – as the world recorded its first million COVID-19 deaths – South Africa and India presented a proposal at the World Trade Organization for “a waiver from the implementation, application and enforcement” of global intellectual property rights “in relation to prevention, containment or treatment of COVID-19.” Along with other western countries, the Trump administration strenuously opposed the idea. But on Wednesday the Biden administration said it is prepared to go along with such a waiver, at least for coronavirus vaccines.

What happened?

Read the entire USA Today op-ed>>

Trump Can Make 'Buy American' More Than A Slogan. Just Enforce A 1980 Law

By Professor Justin Hughes
Hon. William Matthew Byrne, Jr. Chair

This op-ed originally appeared in the July 3, 2017 edition of USA Today. 

China is not manipulating its currency to our detriment, and NAFTA is a good thing for the U.S. economy. But Donald Trump has been right in his basic observation — as both candidate and president — that we need to do more to address our country’s trade deficit, how other countries "game" international trade, and how American jobs move offshore. Trump may not realize it but he could advance his “Buy American and Hire American” goals by activating a policy tool already buried in U.S. patent law.

Year in and year out, the federal government has spent tens of billions of dollars supporting scientific and technological research —­ for example, more than $131 billion in 2015 alone. Before 1980, federal agencies had different policies on inventions resulting from this federally funded research, with most of them reserving any patent rights to the federal government. That meant there was a vast trove of inventions collecting dust in government files: As of 1980, there were 28,000 patents held by the government this way — and fewer than 4% had been licensed for commercial use. While many of those were patents on military technology — and shouldn’t be licensed — there was clearly underutilization of a vast technological portfolio.

Read the full op-ed here >>

In Memoriam Best Mode

By Professor Lee Petherbridge & Associate Professor Jason Rantanen (Iowa)

On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act ("AIA" or "Act").[1] It embodies the most substantial legislative overhaul of patent law and practice in more than half a century. Commentators have begun the sizable task of unearthing and calling attention to the many effects the Act may have on the American and international innovation communities.[2] Debates have sprung up over the consequences to inventors small and large,[3] and commentators have obsessed over the Act's so-called "first-to-file" and "post-grant review" provisions. Lost in the frenzy to understand the consequences of the new Act has been the demise of patent law's "best mode" requirement.

The purpose of this Essay is to draw attention to a benefit the best mode requirement provides--or perhaps "provided" would be a better word--to the patent system that has not been the subject of previous discussion. The benefit we describe directly challenges the conventional attitude that best mode is divorced from the realities of the patent system and the commercial marketplace. Our analysis suggests that patent reformers may have been much too quick to dismiss best mode as a largely irrelevant, and mostly problematic, doctrine.

Read the full piece on Stanford Law Review.

[1]Pub. L. No. 112-29, 125 Stat. 284 (2011) (to be codified in scattered sections of 35 U.S.C.).

[2]See Jason Rantanen & Lee Petherbridge, Commentary, Toward a System of Invention Registration: The Leahy-Smith America Invents Act, 110 Mich. L. Rev. First Impressions 24 (2011)

[3]See Lee Petherbridge & Jason Rantanen, Jay P. Kesan, Debate, America Invents, More or Less?, 160 U. Pa. L. Rev. PENNumbra 229 (2012)

Professors Petherbridge and Rantanen argue that the America Invents Act could be counterproductive

By Professors Lee Petherbridge & David Schwartz

Professor Lee Petherbridge is involved in a debate on PENNumbra, a University of Pennsylvania Law School project (originating with their law review) that hosts debates between scholars on current controversies. He and Professor Jason Rantanen of the University of Iowa College of Law have asserted that despite its stated goal to stimulate innovation and job creation, the America Invents Act (recent patent reform legislation) may well do just the opposite. In response, Professor Kesan (Illinois) examines other sections of the Act, arguing that they provide more reason to be optimistic.
In the piece, the professors argue that:

"All rules are distortive. In perhaps no instance is this idea more true than when it comes to the patent system. In a very fundamental sense, the system is nothing more than a set of rules imposed for the very purpose of affecting the behavior of economic actors. Like so many other rules, it has a laudable purpose: the desire to efficiently stimulate invention and innovation.

The purpose of the newly enacted Leahy-Smith America Invents Act (AIA) is to rearrange the rules of the patent system and thus to create a new and different set of benefit and cost possibilities for economic actors. Pub. L. No. 112-29, 125 Stat. 284 (2011) (to be codified in scattered sections of 35 U.S.C.). Unfortunately, the changes in benefits and costs worked by the AIA seem tailored to do two things: (1) discourage the patent-driven incentive to innovate, and (2) protect market power. This suggests the AIA may have a negative effect on American competitiveness and job creation, a disappointing outcome given that Congress's express purpose in enacting the law is to promote technological development and protect the rights of small businesses and inventors."

Read the complete debate on PENNumbra.