ALI

I'm deeply honoured to have been elected a member of the American Law Institute ("ALI") in July 2022. I look forward to doing my best to contribute to the important mission of this wonderful organization:  “to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work.”

Twin Royalties Paradox

 The Supreme Court of Canada clarified the Canadian Copyright Act (R.S.C., 1985, c. C-42) when it rendered its judgment in Society of Composers et al. v. Entertainment Software Association on July 15, 2022.  At issue was whether the Copyright Act added a new legal right for authors by amending §3(1)(f), which grants to authors the right "to communicate the work to the public by telecommunication", when the Canadian Parliament attempted to incorporate Article 8 of the WIPO Copyright Treaty into the Copyright Act.  The Copyright Board of Canada had earlier ruled that §2.4(1.1) had modified §3(1)(f) in such a way as to require that users of works of authorship "needed to pay two royalties to access works online - a royalty for "making works available" and an additional royalty when the work was actually downloaded or streamed."  The Federal Court of Appeal overturned the Copyright Board, holding that there is no independent royalty simply for making a work available.  The Supreme Court broadly agreed, explaining,

If a work is downloaded or made available for downloading, §3(1)(f) is not engaged.  If a work is made available for streaming and later streamed, §3(1)(f) is only engaged once.

In addition to its decision finding no additional "making available" royalty, the Supreme Court decided to other issues.  One involved the appropriate standard of review.  The other considered how international treaties, such as the WIPO Copyright Treaty, should contribute to the interpretation of statutory provisions intended to implement such treaties into national law.  Although the Supreme Court noted that "A treaty should be considered when interpreting statutes that purport to implement the treaty", and that "There is no need to find textual ambiguity in a statute before considering the treaty", a court must "intepret what the legislature (federally or provincially) has enacted and not subordinate this to what federal executive has agreed to internationally."  In short, "It is always the domestic statute that governs".

Just as Aristotle may have observed that a friend is "One soul dwelling in two bodies", Society of Composers et al. v. Entertainment Software Association suggests that online copyright may be one royalty dwelling in two legal rights.

Fair Share

My brilliant and creative colleagues, Bill Tomlinson, Bonnie Nardi, Daniel Stokols, Ankita Raturi, and I are pleased our article, "Returning ecological wealth to nonhuman species through design: the case for ecosystemas", has been published in Ecology and Society (27(2): 34).  Here is the abstract:

Human population and energy use have increased rapidly in recent centuries. This growth has relied on Homo sapiens appropriating ecosystem services previously shared more equitably with many other species. Envisioning this process as a transfer of ecological wealth among species provides a framework within which to examine human activities. We use this framework to critique the broad endeavor of design, and in particular human-computer interaction design, as it has been pursued by human civilization over the past several decades. We offer a conceptual tool, the ecosystema, that may help enable design processes to support the redistribution of ecological wealth to nonhuman species. The ecosystema is based on the concept of personas: distilled representations of particular user groups that are a key part of many design processes. The ecosystema construct is analogous to a persona, but at the level of an entire ecosystem rather than of a particular human population. This construct could help discern ecosystem level impacts and enable them to influence design processes more effectively. Ecosystemas also may afford greater leverage for effectively managing current environmental crises than existing anthropocentric design approaches.

Our article is available as a free PDF here.

Biotechnology Patent Law Top Ten Of 2020

Brilliant legal eagle, Kevin Noonan, and I collaborate each year on an article covering what we consider to be the top ten United States biotechnology patent law judicial decisions of that year.  Our article, "Biotechnology Patent Law Top Ten of 2020: Valeant Victorious, Falling Eagle, and Successful Slayback", was recently published in the Texas A & M Journal of Property Law (citation:  8 Tex. A&M J. Prop. L. 409-472 (2022)).  Download the article here for free.  Here is the abstract:

One of the most famous trilogies ever published ends with the hero, Frodo the hobbit, sailing aboard an elven ship from the Grey Havens of Middle Earth to the Undying Lands in the west. Despite this being the third in a series of “Biotechnology Patent Law Top Ten” articles, in this trilogy the world of biotechnology patent law has no leading hero, no ultimate destination, nor any final resolution of issues.

To the contrary, this exciting area of law and technology continues to witness winners and losers in myriad battles across a wide doctrinal theatre of legal war with no end in sight. It is true that some in biotechnology view the uncertainty surrounding the scope of patentable biotechnological subject matter under 35 U.S.C. § 101 as a metaphorical ring they wish the fires of Mount Doom could destroy (or at least clarified by the United States Supreme Court). Others consider the ongoing patent disputes between the University of California, University of Vienna, and Emmanuelle Charpentier (often referred to collectively as “CVC”) and the Broad Institute of MIT and Harvard to be as consequential as the Battle of the Five Armies. We will not even try to compare the endless Abbreviated New Drug Application (“ANDA”) struggles between brand pharmaceutical companies and their upstart generic drug firm rivals using a literary device derived from The Lord of the Rings.3 Suffice it to say that biotechnology patent law will continue to vigorously evolve, and we plan to continue our coverage of its evolution beyond the current trilogy of Biotechnology Patent Law Top Tens.

As in previous years, we admit it was difficult to choose precisely ten top biotechnology patent law decisions. There are certainly otherswe did not include that warrant close attention for their reasonings, rules, and future implications. Nevertheless, both we and our readers can count, so we have done our best to select what we consider to be the top ten biotechnology patent law decisions of 2020. We discuss these decisions [in the article].

To avoid falling behind, consider reading the 2020 Top Ten promptly, because publication of our Biotechnology Patent Law Top Ten of 2021 is imminent.

Burke's Bees

 The Burke Museum of Natural History and Culture is a hidden gem in Seattle.  Nestled in the northwesternmost corner of the University of Washington campus, right next to the School of Law, its collections and research efforts are both excellent.  As Visiting Professor at the School of Law back in 2011, I would often cross the 100m to the Burke to explore its latest exhibits.  The Burke has now assured its excellence by appointing the brilliant and inspiring bee expert Dr. Gabriela Chavarria as Executive Director.

Omicron May Be O-Mega

 Excellent as usual, Dr. Roby Bhattacharyya, of the Broad Institute of MIT and Harvard released his "Broad COVID update:  Omicron edition" on December 17, 2021.  Here it is:

The Omicron variant of SARS-CoV-2 may not be "micron" at all, but, rather, Omega.  Let's hope a viral tidal wave is not on its way.

Billion-Dollar Blueprints

 In the December 4, 2021, issue of The Economist, there is a wonderful article featuring patent analytics firm, PatentVector, entitled "Billion-dollar blueprints - A new way of understanding the high but elusive worth of intellectual property".

Patent Fish

Congratulations to Kathi Vidal for her nomination by President Joseph Biden to become Under Secretary for Intellectual Property and Director of the U.S. Patent and Trademark Office ("USPTO") at the Department of Commerce("USPTO").  I would describe my former Fish & Richardson P.C. colleague as an obvious choice, I anticipate a smooth confirmation process, and I wish the Director-nominee best luck in determining the best mode to enable the USPTO to promote the progress of useful arts.

Broad SARS-CoV-2 Update (September 27, 2021)

Broad Institute of MIT and Harvard physician-scientist Dr. Roby Bahttacharyya provided his latest definitive update on SARS-CoV-2 on September 27, 2021:

Uncommonly Vital Innovation Commons

My brilliant colleagues, Jason Potts (RMIT University), Dietmar Harhoff (Max Planck Institute for Innovation and Competition, Ludwig-Maximilians-Universität München, and the Centre for Economic Policy Research ("CEPR"), and Eric von Hippel (Massachusetts Institute of Technology ("MIT") - Sloan School of Management), and I have written an article entitled "Social welfare gains from innovation commons: Theory, evidence, and policy implications" on what we refer to as the "innovation commons".  An early draft of our article is available for free download here.  Here is its abstract:

Innovation commons – which we define as repositories of freely-accessible, “open source” innovation-related information and data - are a very significant resource for innovating and innovation-adopting firms and individuals: Availability of free data and information reduces the innovation-specific private or open investment required to make the next innovative advance. Despite the clear social welfare value of innovation commons under many conditions, academic innovation research and innovation policymaking have to date focused almost entirely on enhancing private incentives to innovate by enabling innovators to keep some types of innovation-related information at least temporarily apart from the commons, via intellectual property rights.

In this paper, our focus is squarely on innovation commons theory, evidence, and policy implications. We first discuss the varying nature of and contents of innovation commons extant today. We summarize what is known about their functioning, their scale, the value they provide to innovators and to general social welfare, and the mechanisms by which this is accomplished. Perhaps somewhat counterintuitively, and with the important exception of major digital platform firms, we find that many who develop innovation-related information at private cost have private economic incentives to contribute their information to innovation commons for free access by free riders. We conclude with a discussion of the value of more general support for innovation commons, and how this could be provided by increased private and public investment in innovation commons “engineering”, and by specific forms of innovation policymaking to increase social welfare via enhancement of innovation commons.

Our general argument is that "if and as private incentives to generate valuable innovation-related information can be sustained – which we will argue is often the case – social welfare will be enhanced when innovation-related data and information are transferred from private ownership to an innovation commons."

As Stewart Brand phrased it (and might have been the first to phrase it this way), "information wants to be free".  This principle holds true for information in the form of data.