IPSC Breakout Session 5, IP, Politics & Identity

Intellectual Property and Political Identity, Barbara Lauriat

IP features some strange bedfellows, going back as early as we can find about patent & ©. Project: a book on Intellectual Property & Victorian Inquiry, examining Royal Commissions on Patent & Copyright. Reform and even abolition were debated. Both Whigs and Tories struggled to fit IP into their political identities—not just ideologies but how they saw themselves.

Communism/socialism: Focus on the role of public interest and underlying communitarian principles. Limiting © to lifetime of author was communitarian. Also focused on personal nature of the labor—so socialists could say that the work of the mind was different. But Herbert Spencer made the same argument from completely opposite political beliefs.

John Stuart Mill changed his views over time a bit. Started out very pro-patent as an exception to anti-monopoly, but in his discussion of communism he carved out invention as a potential area where invention would still happen b/c it’s a naturally agreeable thing to do. Cut from the next edition of Principles of Political Economy, though.

Suffrage was also connected to property ownership. Largely uneducated mechanic could become a voter through invention. So wide availability of patents could be seen as democratizing, and Dickens distinguished support for patenting from support for Chartism.

IP and free trade was also part of the discussion.

Lessons: don’t assume the audience agrees on the fundamentals. Adapt arguments for different audiences. People did change their minds when arguments appealed to their political identities (forget about political theory). Free traders who opposed patents suggested rewards/prizes; this seemed to involve more gov’t regulation and so practical arguments pushed that faction into further & further extreme positions that eventually failed.

Christian Nationalism and IP, Lucas Osborn

Definition: a political ideology that seeks to entangle Christianity with political life. Heavy version: Being a Christian is very important to being truly American; it is very important that the US president be Christian; the Bible should have at least some influence over US law; and when the Bible conflicts with the will of the people, the Bible should have more influence. Only about 3% of Pew respondents endorsed all 4 propositions. Lighter version: about ½ of Americans say laws should be influenced by Christian morals.

What would this mean for IP? Depends on the kind of Xianity. Looked at Biblical principles important in theories of property.

Imago Dei: Genesis—“let us make man in our image, after our likeness.” G-d is a creator, so that’s an area of overlap. Dominion mandate: humans have dominion over all the earth. Caretakers/stewards of creation in ways different from other animals.

Private property: Exodus: thou shalt not steal. Dominion mandate is consonant w/private ownership. Property rights viewed as necessary for human flourishing and social stability—humans are bad and selfish, so private property provides a structure to control our worst natures. The Bible supports giving people the fruits of their labor, whether wages or property rights.

Examples: start from that foundation and yet come to pretty different conclusions. Ruth Okediji: Is the Public Domain Just? v. James Edwards: To Invent Is Divine.

Okediji: private property is in tension w/, though not irreconcilable with, stewardship. Need conception of what it means to be human to shape sustainable conditions for flourishing life. Edwards: mass flourishing coincides w/private property rights.

IP Rights: Okediji says that optimal production of knowledge goods is important, but so is optimal consumption. Stewardship includes private rights and service to others. Edwards: private ownership is what you need—leaves service to others outside bounds of legal duties.

Okediji: need ongoing assessment of IP law, including traditional knowledge. Edwards: Founders were right, should broaden patentable subject matter, make injunctions easier to grant, affirm that patents are private property, not government grants.

Takeaway: Xianity doesn’t get you to a 20-year patent term or automatic injunctions, so be careful. What would Xian IP look like? You can imagine limiting © protections for obscene, pornographic, and potentially blasphemous content, though they also profess respect for the First Amendment. False witness: you could imagine strengthening attribution rights.

Patents: reintroduce/strengthen moral limits on patents.

Fred Yen: creators/inventors have unpaid debts to inventors/creators before them. What does that mean for their rights going forward?

Rosenblatt: were our laws written by Xian nationalists to start? [Or deists?] Tam & Brunetti seem to move away from this. In modern rhetoric, Xian nationalism isn’t just the Xian part but also the nationalist part/white nationalist. National treatment seems vulnerable; internationalism does seem vulnerable too. [which would also have implications for traditional knowledge] Do you care about theology or Xian nationalism?

RT: I don’t see why these are Xian instead of moral views w/Xian characteristics and I say that advisedly b/c China does all these things (limits patents on moral grounds, bars obscenity/sexual material, etc.). We can plug in lots of moral frameworks to these propositions. Compare Pope’s recent pronouncements which do seem to make claims about what Xianity requires in substantive output.

Zahr Said: how much work is G-d doing in this project? Versus self-regarding system imposing majority’s views. Musk’s tech libertarianism is another possible comparator.

Q: human chimeras/patents on parts of humans—what perspective?

Q: could argue that injunctions should not be allowed b/c you’re not an owner but a vessel for G-d’s creation and thus shouldn’t control.

Trans Patents, Andrew Gilden (with Sarah R. Wasserman Rajec)

Inventions that cover gender-affirming care or other inventions with potential for trans people. Patent texts can be archival—how tech is viewed then; as speculative visions for culture; as strategic parts of sales/FDA approval pitches; and as political—vehicles for shifting social norms around taboo topics, such as patents for recreational cannabis granted long before many states legalized.

Political backlash against trans people has often focused on denying them technology, so patents are relevant. Patents using terms that expressly recognize trans people and sex/gender reassignment: 372 granted patents, 3 in 1980s, 4, in 1990s, 7, in 2000s, 112 in 2010s, and 246 since then. Even though trans people and trans-affirming care have been around for a while. Primary focus on trans population: 21; intended users 196; remainder otherwise incidental/cited. Topics: Hormone therapy, phalloplasty, vaginoplasty, breast augmentation, breast concealment, genital concealment, clothing, sexual devices, other health/pharma, AI, and data processing.

Trans people often presented as one of many populations who benefit from claimed invention—methods for treating excess androgen skin changes can help w/PCOS, etc. Or “there are many reasons that people bind their breasts.”

Patentees rely on studies focused on trans people/bodies. Even if trans people aren’t disclosed as target population, trans/cis medicine are inextricable from each other.

Some patentees emphasize uniqueness/unique needs of trans people, whether anatomical or social. Sets up claims limited to trans people as point of novelty. Also nods to consumerism—an underserved marketplace (e.g., genital concealing underwear for trans women; shopping recommendation system that imagines trans women looking for shoes).

So far, no noticeable drop in grants under Trump 2.0. But: FDA warning letters to chest binder retailers, distributors, and manufacturers. Some recipients of the letters had granted patents.

State and marketplace are vying for control over transgender existences. Control over gender expression: property rights can be tied to gender identity; infringement could require jury to find that user is a “trans male.” Disconnect b/t patenting and commercialization—patentees who offer various treatments to cisgender population but have patents for trans populations.

Patent activity maps poorly onto history of innovation in transgender medicine, but may reflect perceived social change or help measure cultural anxiety—patenting activity closely matches rise in mainstream awareness & fear/backlash. Rhetoric mirrors that in other areas of law & politics: opponents fear experimental/off label gender-affirming care; equal protection arguments about state denying trans people access to care available to everyone else; due process arguments about need for access to gender affirming care.

Said: what about coded references? E.g. medical codes can be changed by sympathetic doctors; there might not be explicit acknowledgement.

A: yes, we are tracking a bubbling to the surface.

Rothman: look for patents in the same spaces that don’t use the magic words.

A: Scandinavia would be a place to look there.

Rosenblatt: can this tell us anything about trans self-help and user innovation? Medicalization is partially good but also has big downsides.  

The Value and Values of Patent Ideology, Tejas Narechania

One view: there’s a perfect number of patents that’s just right. His view: there’s no pure vision of patent law. There are multitudes that are incommensurable, irreducible to utils; these are necessary and desirable outgrowth of living in a free & plural society.

Founders: innovation, national security, morality (or even natural rights), distributional concerns—all the policy considerations were there at the beginning.

The State Law of Federal Patent Enforcement, Paul R. Gugliuzza

State bad-faith statutes: motivated by mass demand letter campaigns by bottom feeder trolls against end users. Effect: reduce cost asymmetry b/t accused infringers and NPEs. Permit finding bad faith based on inadequate info, lack of investigation, false/misleading statements/ unreasonable deadlines/settlement demands; some laws apply only to suits against end users or by NPEs.

Key issues that have repeatedly arisen: who can sue and where? Personal jurisdiction via demand letters; federal subject matter jurisdiction over state-created claim? One of these cases has finally reached the Fed Cir. Should courts imply a private right of action where the state laws aren’t explicit? Otherwise it’s left to state AGs with resource & collective action constraints.

What conduct is regulated? Core version is bad faith assertion—but courts have disagreed over what constitutes an assertion or demand letter—analogy to declaratory judgment standing.

Courts also differ on what will ultimately establish bad faith—is including a claim chart evidence of good faith or should the court examine the claim chart for misleadingness/correctiness?

The preemption overlay: objective baselessness as a prerequisite, according to the Fed Cir. Bad faith is not enough if it’s just subjective and the underlying infringement theory was not objectively baseless. Resembles the Fed Cir’s tests for willful infringement and attorneys’ fees overturned by the Supreme Court, so should this test survive?

Remedies: actual damages from assertion, statutory damages, attorneys’ fees for the bad faith litigation (against anyone involved in the assertion), and bonds.

What about anti-abuse measures for assertion of the statutes used abusively? Reverse fee shifting. Doesn’t like categorical exemptions based on patent asserter identity. Geographic gaps—California and other states don’t have these.