Intellectual Property


No one knows when the next great inventor or songwriter will appear. What is certain is that modern inventions will continue to need patent protection and that copyright protections will be required for the artistic achievements of the generations to come. How can regulatory policy incentivize or disincentivize new and novel creations?

Checks, Balances, and Emergencies: Tensions Between Emergency Management Acts and Constitutional Governance

November 17, 2021

The authors of this paper assess how Emergency Management Acts have been used during the COVID-19 pandemic and offer suggestions for how they can be adjusted to better prepare state and local governments for future emergencies.

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COVID Vaccine IP Waiver: A Pathway to Fewer, Not More, Vaccines

October 28, 2021

In this paper, the authors examine a proposal to exempt COVID-19 vaccines and treatments from international intellectual property protections, and argue that such an exemption is unnecessary and could threaten innovation.

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Putting Innovation First: The “New Madison Approach” to Patent Licensing and Antitrust

October 19, 2021

In this paper, the authors advocate for an approach to antitrust and intellectual property that “appropriately protect[s] the legitimate property rights of patent holders and [shields] their unilateral patent licensing decisions from unwarranted antitrust attack.”

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Holding States Accountable for Copyright Piracy

May 13, 2021

In this paper, the authors lay out how copyright law and state sovereign immunity have recently come into conflict, explain why that conflict matters, and propose a legislative solution.

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Aligning Intellectual Property, Antitrust, and National Security Policy

March 10, 2021

The authors argue that the U.S. must remain an active participant in 5G technological development through its antitrust and intellectual property policies to ensure the safety of the systems on which the U.S. military relies and avoid cybersecurity vulnerabilities.

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Closing the Streaming Loophole

July 20, 2020

In this paper, the authors argue that piracy poses a significant threat to the rapidly-growing legitimate online streaming industry. They contend that lawmakers must make piracy through online streaming a felony, rather than misdemeanor, in order to more effectively deter bad actors.

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Putting the Public Back In “Public Interest” in Patent Law

January 22, 2020

In this paper, the authors lay out a conception of the proper place of ‘public interest’ in patent law, and what they see as current, detrimental uses of that principle. Properly applied, the notion serves the public by promoting innovation, but improperly applied, they argue, public interest can serve to stifle progress.

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De-Regulating the Songwriting Business

February 21, 2019

The authors of this paper argue that outdated consent decrees should be ended to take full advantage of modern technologies for the distribution of music.

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How Antitrust Overreach is Threatening Healthcare Innovation

January 28, 2019

The authors of this paper explore the FTC’s recent antitrust actions in pharmaceutical patent litigation and argue that, while well-intentioned, these actions hamper medical innovation and constitute a net loss for consumers.

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Will Overzealous Regulators Make Your Smartphone Stupid?

December 10, 2018

The authors of this paper discuss the patent system’s integral role in a flourishing innovation economy and argue that recent actions in this system by antitrust authorities have had “a deleterious effect on high-tech innovation in the spaces of standards and patent licensing,” and on innovation in general.

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Creativity and Innovation Unchained: Why Copyright Law Must be Updated for the Digital Age by Simplifying It

October 27, 2017

The authors of this paper argue that “the basics of copyright are fully compatible with modern technology, but specific provisions enacted years ago to try to address long-gone business and technological problems are still on the books. Instead of solving yesterday’s problems, these sticky laws shackle today’s creative marketplace.”

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Crippling the Innovation Economy: Regulatory Overreach at the Patent Office

August 14, 2017

The authors of this paper argue that the PTAB has become a prime example of regulatory overreach by creating unnecessary costs for inventors and companies, and, thus, harming the innovation economy far beyond the harm of the bad patents it was created to remedy.

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Deep Dive Episode 193 – Arthrex: The End of Patent Exceptionalism in the Administrative State?

August 18, 2021

An expert panel discusses the Supreme Court’s Arthrex decision and the effects it may have in patent and administrative law and the innovation economy.

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Deep Dive Episode 177 – Patents and Pandemics: Innovation Policy and the Patent Waiver Petition at the WTO

May 6, 2021

Experts debate the role of patents in medical care and how the US should respond to the petition submitted to the WTO to waive all intellectual property rights on drugs, vaccines, or other responses to the COVID-19 pandemic.

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Deep Dive Episode 167 – Courthouse Steps Oral Argument: United States v. Arthrex Inc.

March 9, 2021

Gregory Dolin, Dmitry Karshtedt, and Kristen Osenga join us to review oral arguments in United States v. Arthrex Inc.

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Deep Dive Episode 164 – How Will the Biden Administration Handle China’s Intellectual Property Practices?

February 25, 2021

Experts from across the political spectrum debate the best path forward for the new administration regarding China and intellectual property.

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Deep Dive Episode 156 – Incentivizing Drug Development: Patents or Prizes?

January 21, 2021

In this live podcast, experts debate which legal rules and institutions are best-suited to promote the development and commercialization of new drugs and vaccines.

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Deep Dive Episode 155 – International Reference Pricing and Negotiation: Yes or No?

January 13, 2021

Adam Mossoff and Wendell Primus join the podcast for a discussion of international reference drug pricing.

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Deep Dive Episode 143 – Pandemics & Patents: Do Patents Help or Hinder Medical Innovation?

November 5, 2020

Experts George Horvath and Adam Mossoff discuss how patents can affect medical innovation, specifically in the context of COVID-19.

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Deep Dive Episode 142 – The United States-China Relationship and Intellectual Property

October 28, 2020

In this live podcast, experts on intellectual property and China discuss whether China’s behaviors constitute a violation of international norms, and what, if anything, the United States should be doing about it.

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Deep Dive Episode 118 – Can Patents and Bayh-Dole Fuel Innovation in the Time of COVID-19?

June 25, 2020

In this episode, experts discuss how patents, patent licensing, and the tech transfer process created by the Bayh-Dole Act might provide key legal and policy tools for companies to respond effectively to our current health crisis and crises to come.

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Deep Dive Episode 104 – The Allen v. Cooper Decision, or, Blackbeard’s Revenge

April 14, 2020

This all-star panel discusses the Court’s most recent decision in the context of the evolution of the Court’s sovereign immunity jurisprudence, the policy concerns of Congress and intellectual property owners, and where we might go from here.

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Deep Dive Episode 94 – FTC v. Qualcomm

March 12, 2020

In this episode, Kristen Osenga and F. Scott Kieff recap the district court’s decision, discuss the arguments likely to be made on appeal, and explore the bigger issues this case brings up for antitrust policy.

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Deep Dive Episode 89 – The New DOJ-USPTO-NIST Policy Statement on Remedies for Infringement of Standard-Essential Patents

February 21, 2020

In this episode, David Jones, Kristen Osenga, and Brad Watts discuss this new interagency policy statement and its potential impacts. Adam Mossoff moderates.

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Deep Dive Episode 76 – State-Sponsored Piracy? The Allen v. Cooper Case

October 23, 2019

What happens when a state agency uses without authorization copyrighted videos and pictures of Blackbeard’s famous pirate ship, the Queen Ann’s Revenge?

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Deep Dive Episode 47 – The Songwriting Industry and Antitrust Consent Decrees

April 25, 2019

Kristen Osenga and Mark F. Schultz explore the antitrust consent decrees that have regulated a large part of the music business for eight decades.

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Deep Dive Episode 16 – Is the Newest Part of the Copyright Act Antiquated?

December 20, 2017

Jennifer L. Pariser (Motion Picture Association), Maria Schneider (GRAMMY Award Winning Artist), and Mark Schultz (Southern Illinois University School of Law) discuss the Digital Millennium Copyright Act’s “notice and takedown system” and whether this system is either “an imperfect, but workable solution to a challenging problem” or is it “outdated and impractical?”

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Deep Dive Episode 10 – Is There a “Death Squad” at the U.S. Patent Office?: Examining the Patent Trial and Appeal Board

August 18, 2017

Josh Malone (Bunch O Balloons), Kristen Osenga (University of Richmond School of Law), and Brian O’Shaughnessy (Dinsmore & Shohl) discuss the USPTO’s Patent Trial and Appeal Board.

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COVID-19 and IP Protections on Critical Medical Innovations

November 15, 2021

Kristen Osenga narrates this discussion of a proposal to exempt COVID-19 vaccines and treatments from international intellectual property protections.

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Arthrex: The End of Patent Exceptionalism in the Administrative State?

August 18, 2021

An expert panel discusses the Supreme Court’s Arthrex decision and the effects it may have in patent and administrative law and the innovation economy.

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The Library of Congress Mandatory Deposit Rule: An Outdated Burden?

May 19, 2021

Is it time to rethink the Library of Congress’s mandatory deposit rule?

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Should Congress Close the “Streaming Loophole”?

August 4, 2020

Copyright infringement laws dictate serious penalties for digital works that have been reproduced and downloaded. However, streaming has become the new method of choice for illegal piracy. “Display and public performances” laws – which cover streaming – only carry trivial penalties. This is called the “streaming loophole.” Copyright advocates say that new laws must be passed to close the loophole, while internet freedom advocates insist that new laws could harm consumers.

Kevin Madigan is VP, Legal Policy and Copyright Counsel at the Copyright Alliance.

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Public Piracy of Private Property? Allen v. Cooper

November 4, 2019

The wreck of the Queen Anne’s Revenge, a ship captained by Blackbeard that sank in the early 18th century, sits underwater just off the coast of North Carolina.

Frederick Allen is the exclusive photographer and videographer of the wreck. In 2013, he found that North Carolina was using his footage on state websites without paying royalties – even though he had federal copyright protection for the material. After a settlement, the state continued to use the footage, and in a dispute now before the Court, Allen claims that the state agency officials are using video/photography materials disregarding due process and copyright law.

North Carolina argues that it is covered by sovereign immunity, and thus shielded from a suit over copyright violations.

Are members of a state agency exempt from copyright lawsuits in the name of state sovereign immunity?

The case will be argued before the U.S. Supreme Court on November 5.

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How Do Markets Respond to Patents?

June 25, 2018

Does the Patent Trial and Appeal Board (PTAB) review process influence how markets respond to patents? Can the PTAB be abused by those looking to profit off of the review process? Saurabh Vishnubhakat, Associate Professor of Law, Texas A&M University School of Law, weighs in on these questions.

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Determining Patent Quality

June 20, 2018

What are the boundaries of a patent? What factors are involved when determining patent quality? Saurabh Vishnubhakat, Associate Professor of Law, Texas A&M University School of Law, discusses these questions and elaborates on three types of patent quality: technological, economic, and legal value.

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The Founding Fathers as Economic Innovators

June 14, 2018

Adam Mossoff, Professor of Law, Antonin Scalia Law School, describes how the Founding Fathers viewed a patent system based on property rights as crucial to the creation and preservation of a flourishing innovation economy.

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Enforcing Patents for Bunch O Balloons

May 29, 2018

Josh Malone, inventor of Bunch O Balloons, describes his struggle to enforce the patents for Bunch O Balloons. Is Josh’s experience typical for US inventors? Is the process of protecting one’s invention straightforward? How might this process be improved? A number of intellectual property experts join Josh in elaborating on these questions.

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Innovation in the US Patent System

May 3, 2018

How does the US patent system affect inventors and innovators? Does the patent system promote or stifle innovation? Josh Malone, inventor of Bunch O Balloons, and a variety of intellectual property experts weigh in on this important topic.

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Two Government Proposals Threaten Intellectual Property Rights

Zvi Rosen

November 9, 2020

The federal government is one of the most important customers for goods which rely on patent protection, and sometimes the government may use its unique power to the disadvantage of patent owners.

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The DOJ and Other Federal Agencies Oppose the FTC in FTC v. Qualcomm

Adam Mossoff

July 23, 2019

The DOJ has been joined by two other agencies in its contention that the FTC has adopted a position that is not just at odds with antitrust law, but is also at odds with the national security policies of the U.S. federal government.

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An Unprecedented Conflict Between the FTC and DOJ at the Intersection of Antitrust and Patent Law

Adam Mossoff

May 16, 2019

The Federal Trade Commission’s lawsuit against Qualcomm under the antitrust laws has led to an unprecedented conflict between the FTC and the Department of Justice.  In late April, the DOJ filed a “statement of interest” in the case. If Judge Koh rules against Qualcomm, the DOJ requested the right to participate in the remedy phase of the trial to introduce evidence about the harms to innovation from an “overly broad remedy,” such as breaking up Qualcomm or forcing it to renegotiate all of its licenses.

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Over-regulation is Killing Medical Innovation – But it’s Not the Agency You Think

Kristen Osenga

April 30, 2019

While the FDA’s regulatory scheme may have some room for improvement, it is not the agency that is currently wreaking the most havoc on the pharmaceutical industry.  Instead, it is the FTC that is interfering with medical innovation.

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Moving the (Over-Regulated) Music Industry into Modern Times

Kristen Osenga

April 24, 2019

Music – whether it is pop, rock, country, rap, hip-hop, or any other genre – forms a large part of the human experience.  Music is nearly always present in movies, public places, and often our personal vehicles; we can access music through a variety of services and on numerous types of devices.

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Further Reflections on the Oil States Case after Oral Argument Before the Supreme Court

Richard Epstein

February 23, 2018

Oil States gives the Supreme Court the chance to stop a process that has already run off the rails. And if it does not, Congress should take steps to restore the proper constitutional balance.

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The Supreme Court Tackles Patent Reform

Richard Epstein

October 27, 2017

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC is the most important intellectual property case to come before the Supreme Court in many years. It challenges some of the innovative dispute resolution provisions of the 2011 American Invents Act (AIA) the most significant legislative reform of patent law since the Patent Act of 1952. Oil States assumes its vast significance because its outcome will determine, perhaps for decades, the litigation framework for all future patent disputes.

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