Rochelle Cooper Dreyfuss

Does IP Need IP? Accommodating Intellectual Production Outside the Intellectual Property Paradigm

Arguments for strong intellectual property protection proceed on the assumption that exclusive rights are necessary to generate the incentives that encourage intellectual production. However, recent events suggest that that this assumption is questionable. Many creative endeavors are flourishing without strong intellectual property protection. Examples include fashion, stand-up comedy, magic, cuisine, and software (consider Linux, Apache, Firefox). Academic research has long been conducted under a sharing regime, and even after the Bayh-Dole Act permitted universities to claim patent rights in faculty inventions, the Mertonian norm of communalism continues to exert a strong influence over academic practices. And as Eric von Hippel has amply demonstrated, users generate and share the fruits of their creativity in contexts as varied as extreme sports, surgery, library science, and commercial high-tech manufacturing. Now that the existence of these robust forms of production has been recognized, it is tempting to argue that traditional intellectual property rights should be abolished. At the same time, however, there may be limits to creative production outside the intellectual property paradigm. Ostensibly open systems are sometimes functionally dependent on copyright, patent, trademark, or trade secrecy law. The operation of these systems can also be highly contingent – sometimes on the innovative industry at issue or the technological infrastructure supporting it; sometimes on the sensibilities of particular individuals. Much of the theoretical work treats the education of creative workers as exogenous to the problem of innovation, but the calculus can vary once the need to motivate the acquisition of human capital is taken into account. There are also normative problems: Open innovation may be nonoptimal, it may lead to undesirable strategies for maintaining a competitive advantage, and it can be exploitative of knowledge workers. This paper therefore starts from the proposition that intellectual property rights will not soon disappear. It is intended to contribute to a new conversation on how intellectual property law ought to change in order to accommodate and sustain what Mario Biagioli has termed IP without IP (Intellectual Production without Intellectual Property).

A neofederalist vision of TRIPS : the resilience of the international intellectual property regime

Preface Acknowledgements PART I. Where We Were: The Structure of Intellectual Property and the History of the TRIPS Debate Chapter 1. The Challenges of the TRIPS Agreement Chapter 2. The History and Character of TRIPS and how it Shapes the Contemporary Debate PART II. Where we Are: Dispute Resolution and its Impact on a Neofederalist Vision of TRIPS Chapter 3. The Dispute Settlement Understanding and Interpretation of the Substantive Features of the TRIPS Agreement Chapter 4. Interpretation Continued: The Structural Features of the TRIPS Agreement Chapter 5: TRIPS and Domestic Lawmaking PART III. Where We Are Headed: Intellectual Property Lawmaking For the Twenty-First Century Chapter 6: The WTO, WIPO, ACTA, and More: Fragmentation and Integration Chapter 7: An International Acquis: Integrating Regimes and Restoring Balance Notes Index

Patents and Human Rights: Where is the Paradox?

There is an emerging trend, particularly in international circles, to bemoan the human rights paradox in intellectual property. Thus, it is said that intellectual property rights are grounded in fundamental concepts of human dignity and just deserts. At the same time, however, it is recognized that intellectual property rights protect information, a nonrivalrous good. The paradox is said to arise when one human right is pitted against another, when intellectual property rights are used to restrict access to information that could - at no real cost to the developer - be deployed in ways that satisfy fundamental human needs. It is not difficult to understand why this concern is developing. Along with several other international instruments, the Universal Declaration of Human Rights articulates a commitment to protect the rights of creators; these same instruments also recognize rights that require access to the fruits of creativity. As these commitments become enforceable in courts of law, the stage is set for a clash between the right to control information and the right to use it for such purposes as attaining health and education, participating in cultural activities, engaging in expressive conduct, or freely pursuing intellectual inquiry. The thesis of this paper is that the equation of intellectual property rights generally - and patent rights in particular - to human rights is belied by the historical evolution of these rights and negated structurally, by the manner in which claims to intellectual products are recognized in law. The characterization of patent rights as human rights is not only wrong, it also has unfortunate pragmatic consequences: it is harder to make a case for intruding on patent prerogatives when they are characterized as human rights than when they are justified on utilitarian grounds. Moreover, the ad hoc balancing required can lead to unpredictable decision-making and an environment less conducive to investing time and money in intellectual efforts. This paper examines the evidence undermining the equation of patent rights and human rights. It then sets out distinctions that the human rights rhetoric tends to ignore - differences between intellectual efforts protected by copyrights and patents; between safeguarding creative individuals from involuntary servitude and giving them control over the information that their labor produces; and between holding a patent and holding the expectation of acquiring a patent. The paper ends with examples of how a utilitarian justification for patent rights is better suited to the task of furthering social welfare.

Balancing wealth and health : the battle over intellectual property and access to medicines in Latin America

Introduction 1. Pharmaceutical Intellectual Property Rights Protection and Access to Medicines in Ecuador: State Sovereignty and Transnational Advocacy Networks 2. The Recursivity of Global Lawmaking in the Struggle for an Argentine Policy on Pharmaceutical Patents 3. CAFTA, Intellectual Property and the Right to Health in Central America 4. Balancing Wealth and Health: The Case of Chile 5. Constructing and Contesting the Global Intellectual Property Legal Field: The Struggle over Patent Rights and Access to Medicines in Colombia 6. Balancing Health and Wealth: The Case of Patents and Access to Medicines in Brazil 7. The Influence of the Andean Intellectual Property Regime on Access to Medicines in Latin America 8. The Rights-Based Approach to Intellectual Property And Access To Medicine: Parameters and Pitfalls 9. Public Participation in US Special 301 Actions 10. Going Local: Downshifting in the Era of TRIPS Implementation 11. Applying Human Rights Law 12. The Missing Role of WIPO

TRIPS and Essential Medicines: Must One Size Fit All? Making the WTO Responsive to the Global Health Crisis

This paper was written as the introductory chapter to Incentives for Global Health: Patent Law and Access to Essential Medicines, edited by Thomas Pogge, Matthew Rimmer, and Kim Rubenstein (Cambridge University Press). It challenges the critique of the TRIPS Agreement as a one-size-fits-all regime. To be sure, there are WTO members who prefer to think of the Agreement that way. However, the paper demonstrates how the flexibilities built into the TRIPS Agreement allow a state to fashion local law to deal with its population’s health needs. TRIPS accommodations are not perfect: the second part of the paper considers the roles that other international organizations, such as WHO, and other international obligations, such as human rights agreements, can be used to influence the development and interpretation of international intellectual property law.

In Search of Institutional Identity: The Federal Circuit Comes of Age

This article continues my examination of the experiment in specialization that was undertaken when the Federal Circuit was established a quarter of a century ago. There is now a sharp division in opinion regarding the courts performance among the bar, the legal academy, economists, and the Supreme Court. The first part of the paper suggests that opinions diverge because these constituencies disagree on the appropriate criteria for evaluating the courts output. The piece ends with a discussion of the proposals that have been made for improving appellate decision making in patent cases and, more generally, for improving the use of specialized courts.

Reconciling Trademark Rights and Expressive Values: How to Stop Worrying and Learn to Love Ambiguity

In the early 90s, I wrote two articles examining the expansion of trademark law from its core focus on confusion about marketing signals, to cover such matters as dilution, implications of sponsorship, and rights of publicity. I argued that these developments were putting increasing pressure on free speech interests and suggested that the operation of these symbols could be usefully categorized in two spheres - the commercial and the expressive. By analytically separating the spheres, I thought that both trademark and speech interests could be accommodated. In this essay, which looks at developments in the last decade, I admit that this solution is becoming increasingly less tractable. The exigencies of a global, on-line marketplace make stronger protection for trademarks necessary just when technology makes their widespread expressive use more feasible. Internet shopping requires both exclusivity and unrestricted availability - the former, to keep search costs down by ensuring that consumers find the right site; the latter, to allow markets to work efficiently by ensuring that consumers receive information about comparable products. The popularity of trademarks in humor and criticism create new profitmaking opportunities - and produce funds that can be channeled back into efforts to destabilize trademark meaning. This paper begins with an examination of the doctrinal approaches taken thus far and the limits on what such analyses can achieve. It concludes that preventing confusion, dilution, and cyberconflicts are, in fact, no longer be feasible and that the best a legal system can do is adopt rules that help consumers accurately resolve the inevitable tension. Thus, closer attention needs to be paid to the strategies people employ when confronted with ambiguity. Lessons drawn from cognitive and behavioral research can, it is submitted, provide better protection for the interests of trademark holders and expressive users alike.

Patenting nature—a comparative perspective

ABSTRACT The landscape for patenting products and processes tied to the natural world has changed dramatically in recent times as a result of a series of decisions of the US Supreme Court, particularly Mayo Collaborative Services v Prometheus Laboratories 566 U.S. 66 (2012) and Association for Molecular Pathology v Myriad Genetics, Inc. 569 U.S. 576 (2013) (Myriad). This article critically analyses these decisions and the multitude of lower court decisions that have followed them. This analysis provides support for the growing concern in the United States that it will be increasingly difficult to use the patent system to encourage the development of therapies and research intermediates useful in developing new therapeutic interventions. One option being posited in the industry to deal with this problem is to lobby Congress to reform the threshold patent eligibility standard in US patent law. It is argued in this paper that a more nuanced approach is preferable. Using the experience in Australia as a case study, this paper argues that such an approach is feasible. Australia has been chosen for analysis because the threshold patent eligibility standard is similar in both countries, much more so that with the European Union, and because the highest court in Australia has ruled on essentially the same patent as in Myriad, in D’Arcy v Myriad Genetics, Inc [2015] HCA 35. In addition to the nuanced approach to eligibility currently exercised by the Australian courts and patent office, Australia also has a number of post-grant options for addressing the dynamics of patent monopolies. These include experimental use, compulsory licensing, and government use. It is concluded that, while it would be impractical to attempt to replicate the Australian environment in the United States, there is no reason why some lessons can’t be learned from the Australian experience with patenting nature.

Dethroning Lear? Incentives to Innovate After MedImmune

The Supreme Court’s 2007 decision in MedImmune v. Genentech reversed prior case law and allowed a licensee in good standing to challenge the validity of the licensed patent. In some ways, the decision was unsurprising. It made patent law more consistent with general rules on justiciability and with the Court’s recent concerns about the strength and prevalence of patents. Still, the decision is, in significant ways, astonishing. By apparently shifting all of the risk of invalidation to patentees and putting them into inferior bargaining positions relative to licensees, it arguably undermines patent value, reduces incentives to invest, and endangers the public interest in scientific progress. It is especially detrimental to patent holders in emerging sectors, where licensing income is key to funding research and technology transfer operations. Yet, there is virtually nothing in the opinion that rationalizes the result in terms of innovation policy.This article suggests that this dire view of MedImmune is wrong: that the decision leaves patentees free to share the risks of invalidation with their licensees, so long as they do so expressly, thereby giving potential licensees strong incentives to vet validity at the start of a relationship - and early in the life of the patent. After setting out the arguments for reading MedImmune as promoting private ordering, the article discusses five general approaches to contracting in its light. It concludes with a look at the limits of party autonomy, suggesting that MedImmune also casts doubt on a line of cases upholding agreements between branded pharmaceutical companies and generic manufacturers that eliminate competition in the name of reducing litigation costs.

Resolving Patent Disputes in a Global Economy

The patent industries have discovered the global marketplace. While the practice of patented technologies is now international, patent rights remain territorial. Various international developments facilitate the acquisition of patent rights around the world. However, dispute resolution (including enforcement) remains a difficult problem. This Chapter begins by considering the ways that the problems posed by territoriality are alleviated by traditional legal practices, such as extraterritorial application of local law, consolidation of foreign and domestic claims and private agreements. It ends by describing alternative mechanisms, including deep harmonization and an agreement on a procedural framework for coordinating multinational litigation and judgment recognition.