January 05, 2017
The “Sharing Economy” is a complex phenomenon that has disrupted industries and transformed how we live and work, but experts can’t even agree on what to call it. Lawyers, public policy experts, academics and workers weigh in to define this dynamic phenomenon and to discuss legal and regulatory issues that emerge as these platforms play an increasingly role in our society. 2016 National Lawyers Convention
Justice Scalia first entered public service in 1971, when he was appointed by President Richard Nixon to serve as the General Counsel for the Office of Telecommunications Policy (“OTP") in the White House. From that day in 1971 through his dissent in the Brand X case regarding broadband classification, Justice Scalia brought a deep understanding of technology policy to his career on the Supreme Court. And of course, Justice Scalia was never one to mince words. “It would be gross understatement to say that the Telecommunications Act of 1996 is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction," he observed in AT&T Corp. v. Iowa Util. Bd. The Telecommunications & Electronic Media Practice Group has brought together a panel of experts to discuss Justice Scalia's legacy on telecommunications and media issues and discuss current litigation through the lens of his jurisprudence.
This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.
Telecommunications & Electronic Media: Justice Scalia's Telecommunications Legacy
12:30 p.m. – 2:45 p.m.
- Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, Director, Classical Liberal Institute, New York University School of Law
- Mr. Henry Goldberg, Goldberg, Godles, Wiener and Wright LLP
- Mr. Richard E. Wiley, Chairman Emeritus, Wiley Rein LLP
- Moderator: Hon. Don Willett, Texas Supreme Court
The Mayflower Hotel 2016 National Lawyers Convention
In the past six years, there has been a momentous shift in what can be patented. In four separate cases, the Supreme Court embraced a more muscular approach in enforcing the basic requirement under § 101 of the Patent Act that only certain types of inventions can be patented, impacting inventive activities ranging from biotech to high-tech to business methods. As a result, the Court of Appeals for the Federal Circuit, trial courts, and the Patent Office have responded by sharply restricting the scope of “patentable subject matter," invalidating issued patents and rejecting patent applications at record rates.
This change has been both consequential and controversial. Inventions that once were patentable in key innovation industries, such as cutting-edge diagnostic tests made possible by the biotech revolution and highly complex computer software in the high-tech sector, are no longer eligible for patent protection. Some welcome this development, seeing it as freeing up basic tools of research and preventing abusive assertions of patents against infringers. Others have criticized this development, identifying lost incentives to invest millions in R&D necessary to produce technological innovation and lost value in existing patents given pervasive uncertainty in the patent system as to what is and is not protectable.
The lack of certainty is something both sides of this important legal and policy debate have found troublesome. Many agree that the Supreme Court's current patent-eligibility jurisprudence is confusing and murky. The Court's legal test for assessing patentable subject matter has proven unpredictable in its application by courts, by patent examiners, and by the administrative review board at the Patent Office (the Patent Trial and Appeal Board).
One proposed solution has been to simply abolish § 101, the provision that sets forth the requirement that only an invention comprising a “machine, manufacture, process, or composition of matter" is patentable. The argument is that this provision is an antiquated holdover from the first patent statutes that did not have the granular requirements that now exist in the modern Patent Act, ensuing that only novel, nonobvious, useful and fully disclosed inventions are patentable. This panel will consider whether such a radical move is warranted, whether the Supreme Court's patentable subject matter jurisprudence is on the right track, or perhaps whether any problems in patentable subject matter jurisprudence are fixable by the Court or by Congress.
This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.
Intellectual Property: Courts vs. Congress: What is a Patentable Invention?
1:45 p.m. – 3:15 p.m.
- Mr. David J. Kappos, Partner, Cravath, Swaine & Moore LLP
- Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs, Senior Scholar, Center for the Protection of Intellectual Property, Antonin Scalia Law School, George Mason University
- Mr. Mark A. Perry, Partner, Gibson, Dunn & Crutcher LLP
- Prof. Joshua D. Sarnoff, Professor of Law, DePaul College of Law
- Moderator: Hon. Susan G. Braden, U.S Court of Federal Claims
The Mayflower Hotel Short video
November 04, 2016
Why did Uber and Lyft leave one of the fastest-growing cities in America? Lawyers, reporters, Austin city council members, and the drivers themselves weigh in on the core issues of regulating the sharing economy and what it means for the future of ridesharing in Austin, TX.
In the sharing economy, should new, high-tech businesses face the same regulatory framework as their more established competitors? Or should we allow the peer-to-peer market to regulate itself? "Regulating Rideshare" explores these issues and more in the first of our three documentary shorts about legal issues in the sharing economy. Telecommunications & Electronic Media Practice Group Podcast
In this teleforum, FCC Commissioner Ajit Pai talked about the FCC’s proposed rulemaking to transform the pay television industry and competition for the television set-top boxes sitting in millions of homes across the country. The proposed rule seeks to unbundle the sale of programming from the sale of set-top boxes. The FCC wants third party technology companies to “build devices or software solutions that can navigate the universe of multichannel video programming with a competitive user interface.” The proposal has sparked tremendous debate among pay-television providers, technology companies, state and federal lawmakers, the Administration, and others. Advocates for the proposal think it could spur competition and unlock value for consumers with better and cheaper solutions for accessing video programming. Others believe the Commission’s proposal interferes with free market forces, creates more problems than it solves, and could compromise consumer privacy.
What is the FCC’s proposal? What are the implications for consumer privacy, advertising, and free market competition? Is a compromise possible? Commissioner Pai will explore these and other issues in this important teleforum, explain his dissent to the proposal, and offer us his vision for moving forward.
- Hon. Ajit V. Pai, Federal Communications Commission
- Interviewer: Alexander P. Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP