IPWatchdog.com is in the process of transitioning to a newer version of our website. Please be patient with us while we work out all the kinks.
Adam Mossoff is Professor of Law at Antonin Scalia Law School, George Mason University. He is a Senior Fellow and Chair of the Forum for Intellectual Property at the Hudson Institute, and he is a Visiting Intellectual Property Fellow at The Heritage Foundation for 2019-2020. He is Chair of the Intellectual Property Working Group of the Regulatory Transparency Project at the Federalist Society. At Scalia Law, he teaches a wide range of courses at the law school, including patent law, trade secrets, trademark law, property law, remedies, and internet law. He has published extensively on the theory and history of how patents and other intellectual property rights are private property rights that should be legally secured to their owners and licensed or otherwise transferred as commercial assets in the marketplace. His research has been cited by the Supreme Court, by the Court of Appeals for the Federal Circuit, and by federal agencies.
Professor Mossoff has been invited to testify five times before the Senate and the House of Representatives on proposed patent legislation. His writings on patent policy have appeared in the Wall Street Journal, New York Times, Forbes, The Hill, Politico, and in other media outlets. He is a member of the Intellectual Property Rights Policy Committee of ANSI and the Academic Advisory Committee of the Copyright Alliance. He has served as past Chair and Vice-Chair of the Intellectual Property Committee of the IEEE-USA.
A year ago, the Senate held three days of hearings with 45 witnesses on a legislative proposal that would have brought much-needed reform of 35 U.S.C. § 101. These extensive hearings were a strong signal of a commitment by policymakers to abrogate the disastrous and destructive Alice-Mayo inquiry. Senators Thom Tillis (R-NC) and Christopher Coons (D-DE) promised quick action with a bill formally introduced by mid to late summer. A year later, there is no bill and the reform effort has stalled. What happened? Notably, Big Tech refused to participate in the hearings. Senator Tillis explained in the second day of hearings that “we invited some of the large, high-tech companies to be present and they decided not to as individual companies and instead be represented by … the High Tech Inventors Alliance, and that’s okay, but … silence is consent.” At the hearings, HTIA and other opponents of reform from policy organizations closely linked with HTIA members invoked the tread-worn narrative of abusive patent litigation by patent trolls. They argued they needed the Alice-Mayo inquiry to quickly and efficiently dismiss these patent troll lawsuits to avoid incurring unnecessary litigation expenses. But The data confirms a loss of the longstanding competitive advantage of the gold-standard U.S. patent system in promoting innovation relative to Europe and China.
Five years after the last of the four decisions in patent eligibility doctrine by the Supreme Court—creating what is now referred to as the Alice-Mayo framework—the impact of this upheaval in the patent system has become even more clear. Ongoing court decisions and new data confirm that the Alice-Mayo framework has wrought an unsettling revolution and sowed uncertainty in what former U.S. Patent and Trademark Office (USPTO) Director David Kappos has referred to as the “the greatest innovation engine the world has ever known.” As policy debates on subject matter eligibility ramped up this past year, it is time to return back to the original dataset created by Robert Sachs and David Kappos that we presented in Turning Gold to Lead and provide an update.
n an age with instantaneous commentary on social media, the wheels of justice in courts seem to move at a glacial pace, especially in patent infringement lawsuits in the fast-paced smartphone industry. Yet, courts have been methodically receiving and meticulously reviewing the evidence in Qualcomm’s lawsuits against Apple Computer for infringing its patents. And, like the tortoise who eventually wins over the speedy hare, the judgments are just now coming out against Apple. This past December, a Chinese court issued a preliminary injunction against Apple selling iPhones that infringed Qualcomm’s patents. A week later, A German court issued an injunction against Apple selling iPhones in that country that infringed Qualcomm’s patents. Last week, a jury in the United States found Apple liable for infringing Qualcomm’s patents and awarded Qualcomm $31 million in damages.
As judges, former judges and government officials, legal academics and economists who are experts in antitrust and intellectual property law, we write to express our support for your recent announcement that the Antitrust Division of the Department of Justice will adopt an evidence-based approach in applying antitrust law equally to both innovators who develop and implementers who use technological standards in the innovation industries. We disagree with the letter recently submitted to you on January 24, 2018 by other parties who expressed their misgivings with your announcement of your plan to return to this sound antitrust policy.