Most people probably don’t think a whole lot about the laws of intellectual property and network neutrality—the legal framework that governs much of our creative economy. But these laws touch every aspect of our lives, affecting everything from our work to the novels we read and the way we communicate.
At the heart of this area of the law is creativity—the human spark that yields great literature and song, drama and dance, music and fashion, new treatments and drugs, new companies and inventions. It is both old and new, established and ever-changing, dating back to the country’s founders, who saw fit to write protections into the Constitution with the Intellectual Property Clause, aiming “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
And it changes along with the times, adapting with new discoveries and inventions—from the telephone to the internet to mobile devices and beyond.
“Every major law we have dealing with computers and the internet has either just been decided or was only decided over the last twenty years,” says Bethany Bengfort, JD ’16, who took every IP course and clinic while at Stanford Law. “It’s an incredibly exciting area.”
Stanford Law faculty are at the forefront of this area of the law closely examining the complex issues that underpin innovation—seeing the things that others don’t and looking closely at how a law might encourage or discourage it. Their work is an essential ingredient to the secret sauce that makes the United States the innovation center of the world, with technological startups and creative artists and others keeping the levers of U.S. and world economies moving—or not.
“The need for smart policy analysis, so that lawmakers actually understand the issues they’re facing when it comes to very granular policy issues cannot be overstated,” say Morgan Weiland, JD ’15 (PhD ’17), a junior affiliate scholar at Stanford Law’s Center for Internet and Society and a graduate student fellow at Stanford’s McCoy Family Center for Ethics in Society who focuses on net neutrality issues. “I came to law school explicitly to be able to have an effect on the real world, not just in an ivory tower. We should be informing policymakers and helping the public understand the law.”
Here at Stanford Law School, some of the best legal scholars in the country are doing just that, focusing on innovation and the law, engaging students in groundbreaking research—teaching and inspiring the next generation of lawyers.
Network Neutrality has been called the innovation issue of our time, the recent votes by telecom regulators in the U.S. and Europe promoting strong net neutrality rules critical to preserving the internet as a platform for innovation and economic growth.
“Net neutrality is a principle that has allowed the internet to serve as a platform for free speech, innovation, and economic growth. According to that principle, internet service providers like Verizon and Comcast that connect us to the internet should not control what happens on it,” says Barbara van Schewick, professor of law, Helen L. Crocker Faculty Scholar, and director of the Center for Internet and Society. “That means that ISPs should not have the power to block or slow down websites, make some sites more attractive than others, or charge internet companies fees to reach people faster.”
Van Schewick is uniquely qualified to build the case for net neutrality. A PhD in computer science and a lawyer, she wrote a book on it, Internet Architecture and Innovation (MIT Press 2010). Her articles and papers, both academic and in mainstream media, laid out the case for why allowing ISPs to block or slow down sites or offer fast lanes to those that pay, and slow lanes to the rest, would be in her mind catastrophic—stifling the creativity and the economic growth that has exploded on the internet in the years since it was established.
She understands the history of the issue too. In 2007, van Schewick was one of three academics that, together with public interest groups, filed the petition that started the Federal Communications Commission’s net neutrality inquiry into Comcast’s blocking of BitTorrent and other peer-to-peer protocols. The FCC’s subsequent decision ordering Comcast to stop interfering with BitTorrent was shaped by her work. Three years later the FCC for the first time adopted formal net neutrality rules that relied heavily on van Schewick’s work.
But when the D.C. Circuit struck down these rules on jurisdictional grounds in January 2014, many thought the game was over. Fixing the problem would have required reclassifying ISPs as common carriers, which observers viewed as politically impossible.
“That would have been a moment to give up, but Barbara didn’t,” says Weiland, who was taking a class with van Schewick when the court’s decision came down. She also co-wrote the Stanford Law Review Online article “New Republican Bill Is Network Neutrality in Name Only” with van Schewick. “She stayed absolutely, single-minded in her focus. She understood the issues clearly and, without any reservations, she just went back to work, strategizing, looking at the road map the D.C. Circuit laid out, and quickly asking, ‘How do we make that argument on The Hill?’ ”
Van Schewick became both the communicator and the thought leader for net neutrality. Over the course of a year, she traveled from Palo Alto to D.C. often—having some 150 meetings with members of Congress and staff at the White House and the FCC to make the case for net neutrality and an open internet—and helping to galvanize the public and influence policymakers. She continued researching the problem throughout the year. Her proposals, including five reports that made the legal and economic case for the rules, along with her Stanford Law Review article “Network Neutrality and Quality of Service,” were widely read among the FCC, Congress, and the Obama administration.
“Barbara framed the issues more clearly and more rigorously than anyone else,” says a key figure in the network neutrality movement, Marvin Ammori, GC at Hyperloop One and an affiliate scholar at Stanford Law School’s Center for Internet and Society. “She was able to make people understand the stakes, no matter what level of government they were in, and she was also the key person for all of the most senior government meetings to handle every objection, nuance, argument, evidence, and fallacy—you name it. When we had our biggest meetings, with the smartest, most important leaders in government, it was only Barbara who could be effective in those meetings.”
Over the course of 2014, almost 4 million people asked the FCC to reclassify ISPs as common carriers and adopt meaningful net neutrality rules. Startups like Reddit, Tumblr, Etsy, Kickstarter, Vimeo, and thousands of smaller, lesser-known ones became the face and the drivers of the tech sector’s resistance to net neutrality.
In November 2014, President Obama called on the FCC to adopt strong net neutrality rules based on Title II of the Communications Act. His proposal echoed the proposal put forward by van Schewick, from the legal foundation to the rules that he asked the FCC to adopt. In March, the FCC’s vote secured network neutrality in the United States. The FCC’s rules were then challenged in court, and the D.C. Circuit upheld them in June 2016.
“No one individual met more often with the White House or the FCC on the issue, according to public records. The FCC’s decision and footnotes reflect her work. She had a bigger impact than entire institutions. She is not a normal human, but thankfully she’s on the public’s side,” Ammori wrote in “The Women Who Won Net Neutrality,” a Slate piece published in September 2015.
Again in Europe, over the course of a year leading up to the adoption of net neutrality rules by the EU in August 2016, van Schewick’s research directly informed policymakers and helped to galvanize the public, the final guidelines heavily influenced by her work. And she continues researching the subject and sharing that work with lawmakers here and around the globe—new issues and challenges from ISPs and others a constant threat to an open internet.
While network neutrality is about the architecture of innovation, intellectual property rules like patent law, trademark, and copyright are about the innovations themselves.
“Information drives our nation’s economic output. As such, intellectual property rights become ever more critical when a company’s most valued assets increasingly are intangible,” says Michelle K. Lee, JD ’92, under secretary of commerce for intellectual property and director of the U.S. Patent and Trademark Office. “We find intellectual property in new designs, creative brands, innovative processes, and advanced algorithms. As governmental agencies such as the U.S. Patent and Trademark Office endeavor to create data-driven policies and programs to promote innovation, we look to academic and particularly empirical scholarship to help us achieve our goals.”
The most cited IP scholar in the country, Mark Lemley (BA ’88), William H. Neukom Professor of Law and director of Stanford Law’s Program in Law, Science & Technology, is one of the nation’s leading IP scholars and practitioners. His work effortlessly straddles both—helping Lee and others in government to shape the law and also to understand how laws are affecting practice.
In 2013, Stanford Law School had just launched the Law and Policy Lab, introducing faculty-led policy seminars to engage students in policy-relevant research. Lemley looked again at the phenomenon of “patent trolls”—that is, companies asserting patents rather than making products. Policymakers and business owners alike had for years cast trolls as a strain on the economy—gumming up business and hurting innovation. He had already written several articles on the subject but now he wondered—how much do we really know about these cases.iu
Lemley launched the policy practicum Empirical Study of Patent Troll Litigation in the winter of 2014, enlisting law and graduate students from across Stanford to categorize patent cases—researching each to tease out and classify key criteria and in order to create an accessible picture of these cases.
“There’s a lot of policy argument around patent trolls and the role of patent trolls, and patent reform in shaping the law, but a lot of that argument gets sidetracked by disputes over who counts as a patent troll,” says Lemley. “So, one of the things we’re trying to do is say, ‘You know what? The world is more complicated than ‘troll’ or ‘not troll.’ ”
“Part of the point of doing this was that we really wanted clear, empirical data about what’s happening and what the potential problems are, so that any potential policy reform can be actually based on legitimate data and not just people guessing about it,” says Bengfort, one of Lemley’s students who is now an associate at DLA Piper working in patent litigation.
Bengfort explains that students used datasets provided to them by Lex Machina, an earlier Lemley project, which spun out into a legal tech company. They then coded each lawsuit with a set of classifications so that information, for example about who is asserting a patent (inventor, creator, or purchaser), can be easily retrieved thus adding a key piece of information to our understanding of patent cases. The goal of this new project, like the earlier one, is to provide better information to guide policy.
Last spring, Shawn Miller, a teaching fellow in Law, Science & Technology who co-teaches the practicum with Lemley, took their students to Washington, D.C., where they presented their preliminary findings to senior staff members of the U.S. Patent and Trade Office and the Federal Trade Commission. There Bengfort presented the findings before a full room.
In the meantime, the practicum’s research is yielding some interesting data.
“Our preliminary data suggests, for instance, that the companies that are in the business of buying up patents to file lawsuits on them win a surprisingly small number of their cases,” says Lemley. “If they do go to court, their win rate is less than ten percent. That’s a significant fact. You can imagine that being deployed in the fee-shifting litigation,” Lemley muses. “It’s evidence that ‘Hey, these people aren’t actually serious.’ It may also affect the plaintiff’s lawyers when it comes to contingency cases.”
“I think this will be very useful for Congress and government agencies because there is currently a focus on patent reform, with proposed bills that sometimes make distinctions between or disparately impact different entity types. For example, the bills may apply fee-shifting provisions only to patent asserters who don’t make products and who aren’t the original inventor or a university,” says Bengfort.
“One of the big concerns with patent trolls is that they’re not actually interested in going to court and testing their patent; they’re showing up, filing a bunch of lawsuits, and saying, ‘Pay me a small amount of money to go away, or you’re going to have to pay your lawyers even more money.’ They’re looking for nuisance value,” Lemley says. “And so, there’s been a push, both in Congress and the courts, to allow prevailing defendants to recover their attorney fees in a wide array of cases, in the hope that that might actually deter some of that nuisance value litigation—that people might be willing to stand up to somebody who says, ‘I’m suing you and I don’t care if my patent’s any good, because I’m only asking for $100,000.’ You’d have to pay that, or pay more to your lawyer. But if you could actually recover your lawyer’s fees, people might be willing to stand up to them.”
Miller says that a white paper was issued over the summer along with a call for papers. While a new group of students is busy finishing the coding and data entry—expecting to hit the target of 55,000 patent cases categorized soon—he and Lemley are planning a conference for the spring, hoping to improve on the project with scholarly contributions.
Daralyn Durie first met Lemley during their freshman year at Stanford when the two became fast friends. They studied together again at Berkeley Law and joined forces in 2009 to launch Durie Tangri, LLP, now a small but influential firm representing big names including Google, LinkedIn, Twitter, Fitbit, and Snapchat.
“Mark is a practicing lawyer with what I think is one of the most well-respected federal circuit appellate practices in the country,” says Durie. Though not an academic,
Durie has co-authored several journal articles with Lemley.
“To be fair, anyone who’s ever published a paper having to do with intellectual property has probably co-authored a paper with Mark,” Durie deadpans. “I once went to an academic conference to present a paper we’d written together and I think half the people speaking were presenting papers they had co-authored with Mark. He wasn’t there but he was, by far, the most well represented author in attendance. It was hilarious.”
Durie is a top IP lawyer in her own right. She was the lead lawyer in the groundbreaking Google Books fair use case, which has redefined the scope of the fair use doctrine. And she appreciates the value of Lemley’s inquisitive mind.
“Mark writes papers that practitioners read and that courts cite because they deal with how to interpret cases, and how to think about what the law is, rather than abstractly think about what the law ought to be, but isn’t,” says Durie. “He’s one of the most cited legal scholars because his work is both academically rigorous and insightful. It’s also practical. He’s very good at drawing a path through the cases and explaining how the case law illustrates a principle that may not be explicit in the case law, but explicit in explaining why cases come out the way they do. That kind of scholarship is incredibly helpful for lawyers and judges trying to understand what the law is driving at in a particular area.”
Looking at the big picture, Lemley turns to the much-discussed 2014 SCOTUS patent decision, Alice Corporation Pty. Ltd. v. CLS Bank International, which affected the scope of patent-eligible subject matter in the U.S.
“Courts are still sorting out what exactly it means. I think they’re coming to an equilibrium in the software field that’s probably a pretty good one. The courts are distinguishing between people who actually have real technology and have limited their patents to that real technology, and those people do okay,” he says. “The patents that have been suffering are ones written in very vague, broad, functional language—that claim any computer configured in any way to solve a problem.”
Lemley thinks the “I know it when I see it” approach to patentable subject matter may be indicative of a trend. “One of the things that’s been interesting about the last couple of years is that the courts seem to be mostly coming to the right results, even as they’re unable to articulate a clear, understandable test to get to those results.”
In the digital age, where creative works are easily copied, the author seems to have gone from celebrity to underdog—imitation and rip-offs leading to lost earnings, hampering creativity. But Paul Goldstein is optimistic.
“This probably mixes hope with hard prediction, but I think we’ll see a new focus on authorship,” says Goldstein, the Stella W. and Ira S. Lillick Professor of Law, who has penned five novels himself. “I think creators—writers, composers, digital artists—will emerge as more central figures, for technical reasons (look at self-publishing), for economic reasons, and for psychological reasons. There’s a real craving for authenticity. Our work here at the law school helps to protect that.”
Goldstein takes the long view, his vantage point dating back to 1972 when Stanford Law School invited him to visit as part of a strategic decision to bolster its IP faculty. In 1973, Goldstein published Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials, now in its eighth edition, and in 1975 he joined the faculty.
“Marc Franklin taught copyright or IP from time to time, and John Barton, even back then, was teaching courses related to technology transfer, but I was the only full-time faculty member teaching the omnibus course looking at copyright, patent, and trademark,” recalls Goldstein.
Widely recognized as a leading IP scholar, Goldstein has contributed to the field in significant ways—his influential four-volume treatise on U.S. copyright law and a one-volume treatise on international copyright law and casebooks on intellectual property and international intellectual property are still used extensively.
Perhaps most significant, though, is that Goldstein understood, early on, that technology and the emergence of the internet would affect the field and dramatically change the law.
“Paul was one of the first professors at the law school to wrestle with the technological changes that were on the brink of creating new questions in the world of copyrights and patents,” says Google’s GC Kent Walker, JD ’87. “Paul’s book, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (Stanford University Press 1994), really started to examine what it meant to have content available worldwide, available easily to a whole variety of users, creators, and re-creators. He has, for many years, been at the forefront of careful, thoughtful scholarship on these issues.”
Goldstein’s acclaimed book looks at past, present, and future copyright law and how a rapidly changing culture—driven by the then new “World Wide Web”—would change copyright. In the book, Goldstein imagines a “celestial jukebox,” which he presciently described as a “digital repository of books, movies, and music available on demand”—in other words—very much like the services available to us today. He attributes some of the inspiration for that futuristic vision to legal work he did when he first came to Palo Alto. He explains that in the early 1970s he was hired by a pioneer in the development of computer networks, Paul Baran, who was consulting with the Defense Advanced Research Projects Agency or DARPA on the introduction into the private sector of something called the “ARPANET”—the precursor to today’s internet.
“Paul’s copyright classes were a key part of what set me on the path to copyright lawyering and internet issues,” says Fred von Lohmann, JD ’96 (BA ’90), Google’s legal director of copyright, who previously was a senior staff attorney at the Electronic Frontier Foundation focusing on copyright. “He’ll probably remember that most of it was about me arguing with him. I like to think that each of us persuaded the other a little bit.”
Von Lohmann says that the law school was quick to react to a changing tech landscape. He recalls that in 1994 he was a teaching assistant for Margaret Radin (BA ’63), William Benjamin Scott & Luna M. Scott Professor of Law, emerita, helping to set up the law school’s first cyberlaw class.
“In 1994 when we did that, you could read everything that had been written about internet and the law—and it filled only two boxes—that was it! Now, a lifetime wouldn’t be enough,” he says. “Many of those issues we discussed back then are still at the forefront today—privacy, encryption, copyright, free speech.”
“The field has jumped from the back of the business section to the front page of the daily news,” says Goldstein. “It has grown by orders of magnitude in its impact on our daily lives. And so have the conflicts and tensions.”
Like Lemley, Goldstein also carries a full teaching load and practices law—he’s of counsel at Morrison & Foerster—gaining valuable insights into one from the other (both he and Lemley are in the IP Hall of Fame). And he too saw the opportunity for students to do some scholarly research to help government officials through Stanford Law’s Law and Policy Lab.
Launched three years ago by Goldstein, the Copyright Licensing practicum, in partnership with the U.S. Copyright Office, first looked at copyright challenges facing photographers in the digital era. They created a prototype for licensing photographs that allows for easy licensing of photographs—and payment (see sidebar).
Now in its fourth year, the practicum is taking on a new challenge: software registration. Working with the head of the registration division of the U.S. Copyright Office, Goldstein and the students are surveying lawyers from all corners of the software industry—big companies, small ones, startups, video game makers, app producers, and more—to assess their participation in the registration process.
“The copyright system was designed for book publishing, which is what the registration requirements were built around,” Goldstein explains. “And registering software source code, which is a current requirement, raises concerns on the part of developers. So there has been less registration of software than might be expected.”
Goldstein and his students aim to design regulations that will bring software copyright registration into the digital age—and encourage it. Timing for this project may be spot on, in the aftermath of the U.S. Supreme Court’s Alice decision.
“I suspect that the Alice decision could push software producers toward copyright,” says Goldstein. “Copyright has always been the dominating source of protection. Even when people don’t register, they rely on copyright because it’s automatic. But there are advantages to timely registration—with remedies and evidential matters. And it establishes ownership, which helps abroad where countries, like China, want to see your registration before they will believe you own copyright. So it’s important. It would be good to make the process easier.”
Shining a spotlight brightly on innovation is key to the work of students in the Juelsgaard Intellectual Property and Innovation Clinic at the Mills Legal Clinic of Stanford Law School.
“At the Juelsgaard Clinic, innovation is the core focus of everything we and our students do,” says Phil Malone, professor of law and the inaugural director of the clinic, which he launched in the 2013-2014 academic year.
“I worked with Phil Malone some when he was at Harvard where he ran the Cyberlaw Clinic, and I think it’s great that Stanford has this clinic focused on innovation. Innovation requires a clinic of its own,” says von Lohmann. “Stanford Law has been at the center of so many of these topics going back 20 years. And the faculty represent the ideal hybrid of academic work, public policy engagement, and amicus participation.”
“We seek to explore in a deep and nuanced fashion the forces that affect innovation, particularly laws and regulations like IP, antitrust, privacy,” explains Malone. “So we handle a lot of IP cases but also regularly represent clients in areas other than IP that affect innovation and sound innovation policy.”
The span of the cases Malone and his students choose for the clinic is wide too, ranging from genetic testing to pharmaceuticals to ebook access for print-disabled people to cable set-top box innovation to net neutrality to, well, fashion.
A recent petition for certiorari in the Supreme Court in Star Athletica, LLC v. Varsity Brands, Inc. caught Malone’s eye. The question was whether the chevrons, zigzags, stripes, and other design elements on uniforms are decorative and aesthetic or whether they are elements essential to the function of a cheerleading uniform. “Expressive, artistic elements are copyrightable; functional elements are not,” he explains.
Malone didn’t have a particular stake in the design of cheerleading outfits. “We’re not that interested in fashion,” he says. What Malone and his students did find interesting about the Varsity Brands case was the issue of “conceptual separability”—how copyright law applies to an item that has both useful characteristics and aesthetic characteristics. How courts separate functional features from expressive ones turns out to be very important for innovation in industries and technologies far beyond fashion. This question is especially critical for 3D printing, which allows users to design and manufacture real functional objects that also incorporate significant sculptural, artistic design elements.
Clinic students Bill Koch and Sydney Lakin, both JD ’17, worked with Malone and Jef Pearlman, Juelsgaard’s clinical supervising attorney and lecturer in law, on an amicus brief to the U.S. Supreme Court. The brief, submitted on behalf of a group of innovative 3D printing companies, urged the Court to review the case and explained that its significance extended well beyond the immediate context of fashion and cheerleading uniforms. The brief urged the Court to grant cert to resolve a multi-way circuit split and articulate a uniform standard for conceptual separability under copyright law. The Court granted review in the case and it will be argued later this term (Lemley submitted a brief to the Court on the case as well.)
“Our students crafted their arguments to explain to the justices why granting cert was important to encourage the continued explosive growth and innovation we’re seeing in 3D printing, an especially dynamic technology, says Malone. “Innovators in 3D printing and other industries need certainty, and the current situation of four or five different circuit court tests for determining conceptual separability is not good for creators, not good for 3D printing companies, not good for innovation.”
The clinic’s other cases involve the full array of legal issues that are key to innovation, with copyright, patent, trademark, and antitrust often at the center of its work for clients.
In a case two years ago that bridged several legal areas, clinic students Matt Rietfors, JD ’15, and Brian Weissenberg, JD ’16, submitted an amicus brief to the Second Circuit in New York v. Actavis, an appeal involving a branded pharmaceutical company’s efforts to use a practice called “product hopping” to delay the entry of generic alternatives. The appeal, Malone explains, combined monopoly maintenance under Section 2 of the Sherman Act, the complex regulatory structure of the Hatch-Waxman Act and state drug substitution laws, and patent law. The clinic represented almost all of the law professors in the country (including, again, Lemley) who have studied and written about product hopping.
“We shared our clients’ expert views that antitrust law is an appropriate means to protect from harmful, anticompetitive conduct the carefully crafted Hatch-Waxman scheme to promote generic competition,” says Malone. “After submitting the brief, Rietfors and Weissenberg traveled to New York to watch the oral arguments in the Second Circuit, which ultimately concluded that, as the brief had argued, product-hopping could violate the Sherman Act.”
Malone’s perspective on these competition issues is shaped by his 20 years at the U.S. Department of Justice where he saw firsthand the relationship between law and innovation. After several years in D.C. with the Antitrust Division, he moved to its San Francisco office, rising to lead counsel in a wide variety of DOJ investigations and trials and ultimately building cases that challenged anticompetitive practices by some of the tech world’s giants, including Microsoft and Oracle. His work examined head-on the role that competition and market dynamics play in facilitating innovation in rapidly evolving industries.
Antitrust is another essential driver of innovation in the world economy—and a keen focus for A. Douglas Melamed, professor of the practice of law at Stanford Law School.
Principal deputy at, and then acting head of, the DOJ’s Antitrust Division and a former chair of the antitrust and competition practice group at WilmerHale, Melamed has litigated, at one point or another, most of the important tech sector antitrust cases in the last 20 years. One was the case that accused Microsoft of monopolizing personal computer operating systems—for which he helped to develop the government’s legal theories. He came to Stanford Law in 2014, after having been general counsel of Intel Corporation, to co-teach the new course Going Global: Advising Clients in a Global Economy. He also teaches Advanced Antitrust: Monopolization and Abuse of Dominance in the US and the EU.
“I became interested in IP issues when I was at the Justice Department. I came to understand that while U.S. antitrust law is rather mature in the sense that there is a conceptual framework capable of addressing all antitrust questions, patents give rise to competition issues that pose unique challenges for antitrust law.”
Melamed explains that the reason for that is that a central question in antitrust matters is whether one party or the other has market power. “Does it have economic clout, by reason of its assets?” asks Melamed. “The problem is that if the critical assets consist of, or include, patents, it’s very hard to answer that question because you usually don’t know whether the patent is valid or how it’s going to be construed.”
“I’ve never seen an antitrust case that turned on uncertainty about who owned the factory. But when the asset is patented technology, you don’t really know until it’s been litigated who owns the technology, in other words, whether the patent is valid,” he says. “Also, to continue the factory metaphor, you don’t know the boundary of the factory until the patent’s claims have been construed in litigation. And if you don’t know who owns it or how big it is, it is often very difficult to know whether it creates market power for the patent holder. Those uncertainties create a huge challenge for antitrust law, which has interested me for several years.”
Melamed notes that patents and innovation are not the same thing. Many of the most important innovations in recent years concern business concepts that have very little to do with IP.
“One example is the big vision—doing away with the traditional store,” he says. “Look at Uber, Airbnb, and Amazon. And also Walmart’s innovations in supply chain management.”
One of the big issues with IP, Melamed says, is how it’s used strategically by companies as an anticompetitive tool. Complicating matters is the global nature of business, with companies having to file for patents internationally—and protect their IP in the global marketplace.
“Patents are both an aid to innovation and an instrument of competition, sometimes in response to, or as a defense against, innovation,” he says.
Lisa Larrimore Ouellette joined the faculty as assistant professor of law in 2014, adding a new perspective to Stanford Law’s IP and tech-related law faculty—that of a scientist-turned-lawyer. She has a PhD in physics and she enjoys digging into the granular aspects of science and patent law.
“My science background gives me the advantage of understanding how research works in practice, which is essential to determining how the law can best serve scientific innovation,” she says.
Ouellette is particularly excited about a new project, which picks up from a 2012 Harvard Journal of Law & Technology article of hers titled “Do Patents Disclose Useful Information?”
“Legal scholars disagree over how useful patents are for scientists,” she says. “So I surveyed scientists about whether they look to patents as a source of technical information—whether they read patents the way they read journal articles, and why or why not.” She has found that a surprising number of scientists do learn new information from patents, a fact that has implications for patent doctrines such as willful infringement.
“In the patent reform context, as Lisa and Mark know, there’s been a lot of good work done to analyze the patterns of submissions and filings: What patents are granted, how litigation is flowing, how questions are playing out in real life,” says Google’s Walker. “The ability to gather data on the ground and to thoughtfully analyze and think through various policy prescriptions is essential. It doesn’t just contribute to court decisions—with judges citing law review articles—but percolates through the whole legal ecosystem—from law schools, to NGOs, to foundations and policymakers. When we’re lucky, informed academic thinking becomes a framework that helps shape how legislators approach these issues. It’s more than mood music—it’s really an important driver of high-quality public policy.”
Her research, like so much that is done at Stanford Law, is aimed at policy and informing those that are making law.
“People here really value work that is connected to the real world, trying to understand the impact that different legal rules have or may have,” she says. “There’s on-the-ground policy work and collaboration and co-authorship is valued. That all attracted me to Stanford.”
Stanford’s empirical data expertise is also part of what attracted Ouellette to the law school. She is currently collaborating with Daniel Ho, William Benjamin Scott and Luna M. Scott Professor of Law, to look at patent peer review to determine if it can improve the patenting process.
Ouellette is also looking at innovation policy more broadly. “I don’t think there’s a clear answer to how the United States is doing. That’s why I’m interested in studying the economics of IP,” she says. “There was a lot of concern for a while that IP was stifling innovation, with the rise of patent trolls and low-quality patents, particularly in software. But now we’re at a point where some people think the pendulum has swung too far and that patent rights aren’t strong enough to encourage innovation. Trying to tackle this empirically is an exciting challenge.”
Ouellette embraces the fast pace of change that IP and innovation law offers, where she and her colleagues at Stanford have the opportunity not only to interpret but to inform law.
“IP law has, I think, changed significantly over the last 15 years. It used to be viewed as a more niche field of legal practice, and now it’s something that is important for every top law school to develop a program in. And it is a thriving area of legal practice for a growing segment of the US economy—of the global economy—as we move toward a more information-based knowledge economy,” says Ouellette. “But the law is also changing all the time. Practically every doctrine that I teach in my IP class has been affected by a recent Supreme Court case or statutory amendment. You can’t teach IP from an old casebook. That also makes it fun to practice—the students that do IP law get to be involved in changing the law.” SL