Monday, February 22, 2021

WIPIP SESSION 8.A. — IP Theory (partial)

Ester van Zimmeren, University of Antwerp

Exploring Trust Building Mechanisms for Specialized Intellectual Property Courts

CJEU patent court hasn’t entered into force, but there are local and regional bodies. Question: will users trust a new court? Trust in the court and trust in the judges are both important. Trust implies uncertainty about future behavior. Trust means accepting vulnerability based on positive expectations of intentions or behavior of another. Relational and dynamic: A trusts B to do Y. So we need to know who has to trust to think about building trust. (Quote: will a business trust its crown jewels when it doesn’t know the court/the judges?) A leap of faith; distrust is not necessarily bad. Boundary-spanners: persons who interact on behalf of the organization with the outside world: the judges? Reputation based on case-law national level—including education, expertise/experience with patent cases, career path (career judges v. recognition judges, generalized v. specialized judge, etc.), management of litigation process, shared values.

Andrew Michaels: Everyone likes to complain about the Fed Cir, but they are doing their best and he thinks that’s doing ok. Maybe should invite more judges from other countries to sit in and give new ideas.

A: Japan model: rotate in and out of specialized courts. District judges can also temporarily sit in on IP high court. Rotations are usually pretty fast but they can stay longer in the IP courts (rotation is throughout the system)—interesting balance. JPO also participates—interesting but are there rule of law issues?

RT: Consider comparison with Facebook Oversight Board (creepily called the Oversight Board)—because it’s not a governmental organization it has an extreme relationship to building trust as an adjudicator. Current controversy over judges talking to journalists.

Glynn Lunney: when Fed Cir was constituted they took the judges from CCPA and immediately adopted the old precedent as a way of transitioning.

Margaret Chon: who are the stakeholders? Some of the quotes suggest that businesses are the ones who need to trust, but if the key were the public interest, then the question of what the relevant trusting community was would be different.

Lunney: Why is trust important? Trust or not, you had no choice but to litigate in front of Fed Cir.

A: because in the EU you do have choices. If you choose unitary patent, you have to go through the unitary court but you can also use the traditional European patent systems—and then choose the unitary patent court, if it ever comes, or choose the traditional parallel litigation opportunities.

Lunney: will there be a race to the top/race to the bottom? Compete for patent litigation?

A: that’s a big Q in the debates!

Michael Carroll, American University Washington College of Law

The Right to Research in US Intellectual Property Law

Context: reframing exceptions and limitations, including subject matter and scope limits, as user’s rights. Connected to AU’s work on user’s rights in int’l and comparative law. Focus on basic and applied research in all fields of inquiry, including humanities—research intended to promote progress of science and useful arts, commercial and noncommercial.

Right to research is not a single reified legal right, not a single rightsholder. Drawn from a variety of legal sources—int’l (not in this paper’s scope), constitutional, statutory, private ordering/open licenses. Normatively: variety of limiting doctrines loosely cohere into a whole greater than its parts: user’s rights are enabling provisions and positive goods in IP. Persuade courts to keep larger whole in view when interpreting and applying these doctrines; reform doctrines that have been interpreted too narrowly like experimental use in patent. There are other policy concerns about research such as privacy, human subjects rules.

Not just a right of researchers, but libraries, archives, and other intermediaries need to rely on it to collect materials and organize them as research inputs and distribute them as research outputs. Likewise, open access is part of the greater whole.

Copyright: incomplete list: ideas/facts/other §102(b) limits when applicable; fair use (reverse engineering, text and data mining, other forms of copying); §1201 (too-narrow security research exemption; possible First Amendment limits).

Patent: incomplete list: subject matter limits (abstract ideas, products of nature, natural phenomena); other eligibility limits (enablement, written description as limits on patenting early stage research); non obviousness and novelty; disclosure function; experimental use; revisit need for fair use in patent.

Trade secret: incomplete list: subject matter limits—readily ascertainable/collectively known; scrutinize whether NDAs in widely distributed research-relevant info are sufficient to maintain secrecy.

Margaret Chon: research for self-fulfillment? Minaj v. Chapman, which RT suggested in chat was “experimental use comes to ©,” might be about creative self-fulfillment as well as ultimately commercial. [Lunney responds, fairly enough, that this characterization might limit © fair use to the overly limited patent definition.]

A: He definitely doesn’t want a commercial/noncommercial divide categorically. He wants to tell a users’ rights counterstory focused on increasing knowledge. [But doesn’t that require you to take a stand on what counts as knowledge? Is only using big data to create a new historical interpretation within scope? If you (or the library on your behalf—v important during Covid) make copies of a set of individual works and you analyze them and create a new historical interpretation, I assume that counts. So is it fiction/nonfiction that’s the divide?]

Betsy Rosenblatt: Carys Craig has written about the pitfalls of calling anything a user’s right—may want to engage with that. This project seems useful in discussing §1201. Justification for infringement nexus; many proposed exceptions are also for research. Does my big library of TV shows make me a researcher?

A: It could—he sees Minaj as definitely within scope b/c it’s not substitutional copying. That’s the flexibility of fair use: copying for the purpose of research is fair use, but copying for the purpose of just watching the stuff and enjoying it is not. Artists and critics, both getting ready to do something new, are also engaged in research.

Eric Johnson, University of Oklahoma College of Law

An Intellectual Property Fix for Platformer Sales-jacking

Platforms like Amazon and Apple create a marketplace for independent retailers, but also compete on their own platforms. They cherry pick the best and copy them, crushing the independent sellers. What to call this? Information appropriation (Lina Khan) doesn’t seem illuminating. Platform information appropriation? Sales-jacking, like hijacking. [In comments, Brian Frye suggests calling it “competition.”]

Antitrust has been suggested as a solution, but this isn’t anti-competitive; it is anti-innovative. [Isn’t one of the recognized harms of monopoly that it harms innovation?] It’s worth considering this as an IP challenge. The harm is to soft innovation—market insights, product ideas, etc.—things not patentable or ©able. Soft innovation used to be protected by friction, first mover advantage. Frictionless commerce leads to appropriability, so incentives decrease. This soft innovation is important for econ growth and worth worrying about.

Retail data right: prevent market participant side of platform from using data from market provider side: for some period of time?, unless paying a royalty? Sounds like an antitrust enforcement issue, but could be a general retail data right. [using data to do what? Can you recruit other sellers for Etsy by showing that macrame is selling well?]

Contracting/bargains: we don’t want the platform firm to require contracting out from all participants, but maybe collective bargaining/performing rights organization model, PRO model is largely shaped by antitrust [this sure sounds like reinventing antitrust]

Requirements separating market provider decisionmaking and participant decisionmaking, which he acknowledges also sounds like antitrust.

RT: [bracketed comments above] I think this is INS v. AP for Amazon: a quasi property right. Look at the challenges of providing a right only against platforms by looking at the example of India, where Amazon had a variety of relations with big sellers (and appears to have violated Indian rules about vertical separation). The issue of barring only platforms from doing this copying would reduce to an antitrust issue of ensuring vertical separation.

A: Agree that antitrust is also about innovation.

Tyler Ochoa: Thinks this is an antitrust problem; why doesn’t divesting vertically solve the problem? US v. Paramount Pictures: studios were forced to divest theaters: supplier should not own channels of distribution.

Rosenblatt: Not convinced this is a problem. This is competing: how does it differ from ordinary competitive behavior that we think is good for consumers? The reason is the platform has info about sales and pricing that’s harder for other third parties to find. Isn’t this only a regular trade dress/design patent issue; otherwise product-jacking means “the market working the way we want it to”?

A: not necessarily a problem, but risks. No way to appropriate returns from doing the research for, e.g., going to India and discovering just the right jam to import.

Lunney (chat): Can streaming music services make their own content in your regime?

Chon: This is an inequality problem, not (just) an antitrust problem: wealth accumulates in one direction. That’s not an IP problem as such, but Jeff Bezos needs no more money. It’s the small business that needs more structural support.

Lunney: Amazon reaching equilibrium—it is in their interest to have small sellers to make these discoveries, so they have an incentive to refrain from swooping in too quickly. Consider that? May not be persuasive. [Especially given the different incentives within the firm; eating one’s seed corn is unfortunately standard.]

Rosenblatt: Agree with Chon: we should acknowledge that we think this is a broken market where small businesses are being crowded out and frame it not as harm to innovation but harm to development of small businesses.

A: Antitrust today doesn’t care about inequality [though I take the Khan et al position to be that it should] but it at least purports to care about innovation. There are good reasons to believe that inequality hurts overall innovation/growth.

Rosenblatt: It’s also just bad.

Chon: Amazon needs different incentives.

A: historically they bought Zappos and but now they don’t have to do that b/c everyone starts selling from Amazon in the first place and can just take over the products w/o having to buy them out.

Carroll: This isn’t problematic until you hit a certain level of scale—antitrust historically comes in as a circuit breaker—this is the issue w/ Etsy.

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