Intellectual Property

The Role of Congress and Executive Agencies in 21st Century IP Regimes - Event Audio/Video

2015 National Lawyers Convention
Sandra Aistars, John F. Duffy, David S. Olson, Arti K. Rai, Thomas B. Griffith November 19, 2015

The Constitution specifically vests power in Congress to grant authors and inventors exclusive rights in their writings and inventions. The first Congress passed laws setting forth the requirements and procedures for granting patents and copyrights. In these early days, copyrights were granted for registered works, and Thomas Jefferson himself examined patents as a member of President George Washington's cabinet. As IP laws developed, however, they gave substantial deference to both the Patent and Trademark Office (PTO), and the Copyright Office, on matters of reviewing, granting, limiting, and defining IP rights. These agencies have come to wield significant influence over the U.S. IP regime. Recently, and notwithstanding its delegations of power, Congress has been particularly active in passing new patent and copyright legislation. Sometimes Congress specifies how the law shall be interpreted and administered, and other times it delegates this to the relevant agencies, or to the courts. By considering specific examples, this panel will examine the role of Congress, Congressional delegation, and executive agencies in crafting and administering our modern intellectual property systems.

Intellectual Property: The Role of Congress and Executive Agencies in 21st Century IP Regimes
11:00 a.m. – 12:30 p.m.
State Room

  • Prof. Sandra Aistars, Clinical Professor, George Mason School of Law and Sr. Scholar and Director, Copyright Policy & Research, Center for the Protection of Intellectual Property
  • Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
  • Prof. David S. Olson, Associate Professor, Boston College Law School
  • Prof. Arti K. Rai, Elvin R. Latty Professor of Law and co-Director, Duke Law Center for Innovation Policy
  • Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit

The Mayflower Hotel
Washington, DC

Broadband Re-regulation: The Battle Returns to the Courts - Event Audio/Video

2015 National Lawyers Convention
Earl W. Comstock, Miguel Estrada, Roslyn Layton, David B. Sentelle, Kelly A. Donohue November 18, 2015

Panelists will examine the impact of the FCC's Open Internet Order and reclassification of broadband as a public utility and explore possible alternative regulatory regimes. What will the courts do? What should Congress do? What should a new Administration make its first broadband priorities? ‎With the convergence of technologies, should the current platform-specific regulation be replaced with a more flexible, service-based regulatory scheme? How could such regulations impact developing business models and evolving technologies? How is the US faring against the rest of the world in the quest for broadband leadership?

Telecommunications: Broadband Re-regulation: The Battle Returns to the Courts
3:45 p.m. – 5:15 p.m.
East Room

  • Mr. Earl W. Comstock, Partner, Eckert Seamans Cherin & Mellott, LLC
  • Mr. Miguel A. Estrada, Partner, Gibson, Dunn & Crutcher LLP
  • Ms. Roslyn Layton, Visiting Fellow, American Enterprise Institute
  • Mr. Robert Quinn, Senior Vice-President – Federal Regulatory and Chief Privacy Officer, AT&T
  • Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit
  • Introduction: Ms. Kelly A. Donohue, Partner, Wilkinson Barker Knauer LLP

The Mayflower Hotel
Washington, DC

Redskins Trademark in Court, and More - Podcast

Litigation Practice Group Podcast
Dwayne D. Sam, Ilya Shapiro October 26, 2015

Can the government police speech it thinks is offensive? The Lanham Act allows the government to deny trademark registration to "disparaging" speech. What does the First Amendment have to say about the government's ability to pick and choose among speech it doesn't like? Two pending appeals court cases will directly address this important question.

The U.S. Court of Appeals for the Fourth Circuit is scheduled to hear oral argument in Pro-Football, Inc. v. Blackhorse, a case challenging the REDSKINS trademark and, by extension, the constitutionality of § 2(a).

Meanwhile, in In re Tam, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment.

Are we headed for a constitutional showdown over § 2(a) of the Lanham Act? Will the two appellate courts reach opposite decisions and invite Supreme Court review?


  • Dwayne D. Sam, Associate, Wiley Rein LLP
  • Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-In-Chief for Cato Supreme Court Review, Cato Institute

The Constitutional Foundations of Intellectual Property -- A Natural Rights Perspective - Podcast

Intellectual Property Practice Group Podcast
Seth L. Cooper, Randolph J. May, Mark F. Schultz October 22, 2015

Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The essays in The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective explore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it explains how these concepts informed the further development of IP rights from the First Congress through Reconstruction. The essays address the contributions of important figures such as John Locke, George Washington, James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism. Claims that copyrights and patents are not property at all are in fashion in some quarters. This book’s essays challenge those dubious claims. Unlike other works that offer a strictly pragmatic or utilitarian defense of IP rights, this book seeks to recover the Constitution’s understanding of IP rights as ultimately grounded in the natural rights of authors and inventors.


  • Seth L. Cooper, Senior Fellow, The Free State Foundation
  • Randolph J. May, President, The Free State Foundation
  • Prof. Mark F. Schultz, Senior Scholar & Co-Director of Academic Programs, Center for the Protection of Intellectual Property, George Mason University School of Law and Associate Professor, Southern Illinois University School of Law

Cybersecurity: Private Sector Faces Increasing Regulatory Risk From Agency Enforcement and Informal “Guidance” Becoming Standard of Care - Podcast

Litigation Practice Group Podcast
Megan L. Brown, Brent J. McIntosh, Rebecca Seidel October 16, 2015

After Target, Anthem, Sony, and Ashley Madison, cybersecurity is at the top of every company and regulator’s list of worries. As Congress considers legislation, the Executive Branch has been implementing a Presidential Executive Order to develop a “voluntary” framework for cybersecurity. The private sector faces a rapidly shifting terrain without clear standards. Agencies are flexing their regulatory muscles to expand oversight through informal guidance and threat of enforcement, as embodied in a recent victory by the FTC in the Wyndham case.

This Teleforum will provide an overview of the cybersecurity trends facing the private sector, and will discuss the implications for predictability, transparency, and innovation. Will the President’s Executive Order, and the NIST Cybersecurity Framework, become the de facto standard for the private sector? Is the federal government regulating through the threat of enforcement by FTC, FCC, and other federal agencies, instead of through more regular administrative processes? What should companies make of emerging agency “guidance” from agencies like the FDA, SEC, NHTSA, and DoD, on operations and innovation in areas like the Internet of Things, mobile applications and devices, cloud services, connected cars?


  • Megan L. Brown, Partner, Wiley Rein LLP
  • Brent J. McIntosh, Partner, Sullivan & Cromwell LLP
  • Rebecca Seidel, General Counsel, Senate Commerce, Science and Transportation Committee