In 2011, Congress created a new administrative tribunal in the U.S. Patent Office with the power to cancel previously granted patents, called the Patent Trial and Appeal Board (PTAB). The PTAB was created to provide an efficient and inexpensive administrative process for eliminating low-quality patents – what are called “bad patents.” Despite its laudable purpose, the PTAB has earned a reputation among some as a prime example of regulatory overreach. The PTAB’s critics cite a wide range of concerns including inadequate due process protections and bias against patents. A former federal appellate chief judge even referred to PTAB administrative judges as “patent death squads.” So, is the PTAB indeed harming the property rights that have helped to drive the U.S. innovation economy for over 200 years or, is it functioning as intended? What are the concerns of its detractors? If these concerns are valid, does the PTAB need simple reform or more?
This teleforum is held in conjunction with the Monday, August 14 release of a paper authored by members of the Regulatory Transparency Project’s Intellectual Property Working Group. The paper is called “Crippling the Innovation Economy: Regulatory Overreach at the Patent Office.” This paper, which discusses this new administrative tribunal at the Patent Office, is available for viewing and download at RegProject.org.
Josh Malone, Inventor, Bunch O Balloons
Kristen Osenga, Professor, University of Richmond School of Law
Brian O’Shaughnessy, Partner, Dinsmore & Shohl LLP and President, Licensing Executives Society, USA & Canada
Devon Westhill, Director, Regulatory Transparency Project (Moderator)
Has Federalism Gone to Pot?
A Discussion on the Differences Between State and Federal Laws and the Implications for State Marijuana Legalization Efforts
Since the summer of 2014, ISIS has been waging a blitz through Iraq's Nineveh province, murdering and displacing Iraqi Christians and others. The European Union, Britain, and the U.S. have labeled the campaign to eradicate Christianity from Iraq as genocide. However many in the West, even Christians, remain unaware of the scale of this persecution, and even fewer know what can be done about it. The Persecution and Genocide of Christians in the Middle East focuses on persecuted Christians, but its analysis applies equally to the other victims. In the United States, military and diplomatic responses are contemplated and sometimes undertaken. But what about the legal system? Are there things we can or should be trying? That question animates this book as it explores various facets of religious persecution.
The smartphone patent wars have caused a great deal of litigation and consternation. As global patent litigation has accelerated, an international arms race characterized by competing alliances and massive portfolio acquisitions ensued. One recurring claim was "hold-up": certain patent owners, having given assurances that they would license their essential technologies on reasonable and nondiscriminatory (RAND) terms, sought to enjoin smartphone makers from practicing industry standards. Charged with protecting consumers, antitrust enforcers experienced pressure to do something.
The FTC and other competition agencies responded aggressively, clamping down on perceived efforts by owners of RAND-encumbered SEPs to hold-up standard implementers. They happened upon the rule that such patentees violate antitrust law if they try to enjoin a “willing licensee”—essentially a “no-injunction rule.” While that approach has intuitive appeal, is it consistent with core antitrust principles? Does the no-injunction properly consider whether the relevant conduct harms competition? Have the U.S. Federal Trade Commission's actions emboldened foreign competition agencies to act aggressively? These and other questions will be addressed.
According to the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” But how does that provision apply to the vast troves of information that Americans and businesses increasingly collect, send, receive, and store?
On June 5, 2017, the Supreme Court granted certiorari in Carpenter v. United States to resolve the question of whether the Fourth Amendment prohibits warrantless gathering of historical cellular phone records that include location information, also known as historical cell-site location information (CSLI). Judge Raymond M. Kethledge wrote for a panel of the Sixth Circuit that “although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.” Historical CSLI, Judge Kethledge wrote, “fall[s] on the unprotected side of [the] line” because it is routing information used to “facilitate personal communications, rather than part of the content of those communications themselves.” Thus, the government does not need a warrant to obtain the information.
The doctrine applied by the Sixth Circuit is called the third-party doctrine. Although an older form of the third-party doctrine was articulated in Ex Parte Jackson (1878), which distinguished between the addressing information for postal mail and its contents, the contemporary third-party doctrine traces its roots to the “reasonable expectation of privacy” test articulated in Katz v. United States(1967). Its modern form is most closely associated with two of Katz’s progeny, United States v. Miller (1976) and Smith v. Maryland (1979). In those cases, the Supreme Court applied Katz and concluded that the information at issue (bank records and information collected by a pen register device) was not entitled to Fourth Amendment protection.
This call will highlight recent trends in how the courts have considered benefit-cost analysis when reviewing regulations under various statutes. Our experts will also examine the pros and cons of greater judicial review of regulatory analysis and the effect of judicial review on agency behavior. Join us to hear Professor Emily Hammond, Professor of Law at The George Washington University Law School, and Eugene Scalia, Partner at Gibson, Dunn & Crutcher LLP, discuss these important topics.