The Faculty Lounge

Swanson, Race and Selective Legal Memory

Kara Swanson, Race and Selective Legal Memory.  Forthcoming Columbia Law Review.

In 1858, the United States Attorney General issued an opinion, Invention of a Slave. Relying on the Supreme Court’s recent declaration in Dred Scott v. Sandfordthat African Americans were not citizens, he created a formal racial barrier to the patent system, declaring inventions by all African Americans, enslaved and free, unpatentable. Within a few years, legal changes that overruled Dred Scott and abolished the law of slavery rendered the opinion obsolete. This brief opinion became, as far as lawyers and legal scholars were concerned, forgotten. Unlike many overruled opinions dropped from the legal canon, however, Invention of a Slave and the associated story of an enslaved blacksmith who invented an innovative plow have been continuously remembered. Women and men committed to fighting the legacy of slavery maintained both in the collective memory of those seeking full civil rights for African Americans. Our legal forgetting was an act of persistent blindness to their efforts and publications. This Essay excavates the generations of African American writers and activists who have worked to remember the opinion and argues that legal forgetting has carried a cost. Their remembering was not casual storytelling but rather deliberate, strategic, and political. I offer Invention of a Slave as a case study of race and selective legal memory, tracing an unacknowledged color line that demarcates legal memory and the costs of that line. Because of our forgetting, the opinion appears as an obscure part of the antebellum past. When we understand their remembering as a political act, we can see what they have always seen: There is a connection between the patent system and the legal and social definition of citizenship. At a time when the boundaries of citizenship and the contours of who is worthy to be considered an American are hotly contested in ways related to race and ancestry, learning from those who remembered Invention of a Slave offers lessons that link this piece of the past to our present and future, with implications both for the patent system and for our on-going conversation about race, equality, citizenship and the laws that affect them.

Call for Abstracts: Consuming Genetics: The Ethical and Legal Considerations of Consumer Genetic Technologies

An announcement from our friends at Harvard Law's Petrie-Flom Center

Conference date: May 17, 2019

Abstract Submissions Due: October 15, 2018

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2019 annual conference: “Consuming Genetics: The Ethical and Legal Considerations of Consumer Genetic Technologies.” This year’s conference is organized in collaboration with Nita A. Farahany, Duke Law School, and Henry T. Greely, Stanford Law School.

Conference Description: Breakthroughs in genetics have often raised complex ethical and legal questions. Many regard their genetic testing and sequencing as revealing something intensely personal and private. The questions raised by these technologies loom even larger as genetic testing is becoming more commonplace, affordable, and comprehensive. At the same time, advances in CRISPR and other related technologies raise anxieties about the implications of editing our own DNA. One can imagine a future when gene editing may become as widespread as genetic testing is today. As genetic technologies become more accessible to individuals, the ethical and legal questions around the consumer use of these technologies become more pressing. This conference will examine some of these issues.

The rise of genetic testing has allowed individuals to gain new insights into their unique makeup. Already the global genetic testing and consumer/wellness genomics market was valued at $2.24 billion in 2015 and is expected to double by 2025. Amazon noted that Ancestry.com’s DNA test kit was one of their best-selling products on cyber Monday of 2018. The availability of these technologies inspires patients to act proactively to avoid medical conditions, such as when actress Angelina Jolie pursued a double mastectomy after genetic testing revealed that she was in the highest risk category for developing breast and ovarian cancers. The rise of direct-to-consumer genetic testing kits raises questions about the appropriate setting for these activities, however. For example, the Food and Drug Administration expressed concern about 23 and Me’s initial product offering, noting that delivering health-related results directly to consumers might cause these individuals to draw the wrong medical conclusions.

The increased ease of genetic testing and sequencing has also led to a sharp increase in genetic data and the rise of precision medicine. The rise of genetic databases raises significant ethical questions, especially around privacy concerns. In an age where serial killers are caught because their relatives chose to submit DNA to a consumer genealogy database, is genetic privacy for individuals possible? The economics here are significant. Consider the increased value of Myriad’s database of variances of unknown significance after the Supreme Court in Association for Molecular Pathology v. Myriad Genetics held that isolated genes cannot be patented. Does the aggregation of data from genetic testing turn people into products by commercializing their data? How might this data reduce or exacerbate already significant health care disparities?

While gene editing tools such as CRISPR are not yet as widely available as genetic testing technology, in some parts of the world their availability is already spreading. There have been reports that Chinese scientists have used CRISPR-Cas9 technology to genetically engineer the cells of at least 86 patients. Companies in the United States and Europe are expected to begin treating patients with CRISPR-based therapies this year. Many countries have drawn a line against germline modification, but this prohibition may be strained if gene editing technology is widely disseminated. Before we reach that point, this is the time to consider what ethical and regulatory safeguards should be implemented for when the time comes.

The full call for abstracts and registration information are available here.

Hiring Announcement: Director of UNH Law's Patent Practice & Procedure Program

The University of New Hampshire School of Law, a national leader in intellectual property and public interest with a commitment to inclusion, diversity, and quality engagement for all, seeks to hire a Lecturer to serve as Director of the Patent Practice and Procedure Program to begin in August 2019. 

The Director of the Patent Practice and Procedure Program is a full-time member of the law school faculty who oversees the most successful patent-practice-focused law school program in the country. The Director must be a strategic, innovative, and adaptive thinker who can successfully develop, update, and manage UNH’s world-class curriculum in patent practice, and ensure that it is attentive to modern trends in the practice, for both residential and online students. Specifically, the Director teaches courses centering on patent practice and/or related IP topics; oversees adjunct professors teaching and serving as section leaders for patent-practice courses; works with practicing attorneys and alumni to determine current needs in patent law and practice, including in international markets; strategizes potential marketing and development initiatives related to the program; represents the law school in the patent-law community; and participates in faculty governance.  UNH Law actively creates and nurtures a dynamic learning environment in which qualified individuals of differing perspectives, life experiences and cultural backgrounds pursue goals with mutual respect and a shared spirit of inquiry.  Entry-level and lateral candidates are encouraged to apply.  Salary will be commensurate with qualifications.

To be considered, applicants must:

• Have a J.D. or equivalent foreign law degree, with excellent academic performance;
• Have at least five years of full-time patent practice experience in law firms, in house, and/or for the USPTO;
• Have experience in patent prosecution along with one or more of patent litigation, post-grant proceedings before the USPTO, licensing, and portfolio management and development

• Have effective teaching skills, a commitment to excellence in teaching, and a demonstrated ability to work collaboratively with diverse communities;
• Have ongoing connections and networks in the patent-law community to keep current on trends and best practices in patent practice; and
• Be familiar with innovation in legal education, including in seeking opportunities for the law school to pursue new academic programs and extend its brand to prospective students and donors.

Preferred qualifications include:

• Having experience with residential and/or online teaching (preference will be given to candidates who demonstrate an interest in, and willingness to, teach in both environments);

• Being licensed to practice law before the USPTO;

• Having training and significant experience in a scientific, engineering, or technical field; and
• Having an interest in producing and/or engaging with legal scholarship.

For complete details and to apply for this position, visit: https://jobs.usnh.edu/ and search for posting number PF0198FY19.  While all candidates are required to submit their applications via this centralized system, please feel free to direct any inquiries to Professor Ryan Vacca, Chair of the Appointments Committee, at [email protected].  Review of applications will begin immediately.

UNH Law is situated in Concord, the capital of New Hampshire.  Concord is approximately an hour’s drive from Boston, the beautiful New Hampshire seacoast, and the White Mountains.  It is part of the University of New Hampshire - a major research institution providing comprehensive, high-quality undergraduate programs and graduate programs of distinction.  UNH’s main campus is located in Durham on a 188-acre campus, 60 miles north of Boston and 8 miles from the Atlantic coast.  UNH has a student enrollment of 13,000 students, with more than 600 full-time faculty, and offers 90 undergraduate and more than 70 graduate programs.

The University of New Hampshire is an Equal Opportunity/Equal Access/Affirmative Action institution. The University seeks excellence through diversity among its administrators, faculty, staff, and students. The university prohibits discrimination on the basis of race, color, religion, sex, age, national origin, sexual orientation, gender identity or expression, disability, veteran status, or marital status. Application by members of all underrepresented groups is encouraged.

 

Cocky (TM) Situation Heats Up

I recently posted about a romance author who had registered the term "Cocky" for a series of books relating to the exploits of the Cocker Brothers. That registration garnered a lot of criticism from the publishing community. Both the Romance Writers of America (RWA) and the Authors Guild become involved in subsequent legal battles surrounding the mark. On June 1, the District Court of the Southern District of N.Y. struck down an application for a TRO and a preliminary injunction made by the registrant of the mark against the editor of a romance short story anthology entitled "Cocktales" and another romance author who used a similar term in his title. The court noted that it was a weak mark at best and that purchasers of romance titles were not likely to be confused by the similar terms used in different titles by different authors. The mark remains registered and several cancellation petitions are still pending, but at least the ruling has given competing authors some comfort. The Guardian covered the story here. 

(And I'm aware that any mention of this story opens the field for all kinds of puns, so have at it ...)

That "Cocky" Trademark

For anyone interested in the use of trademarks in the publishing industry, an interesting situation is emerging in the romance writers' area. This week romance author Faleena Hopkins was granted a registered trademark in a stylized version of the word "Cocky" for her romance series which includes the word in the title of each of her books. Apparently she then sent takedown notices to Amazon to ask them to remove from sale other romance books with the word in their titles and also sent letters to independent romance authors asking them to change their titles. The Romance Writers of America has apparently engaged an IP attorney to investigate the matter and there is at least one cancellation petition floating around at the moment. A number of legal issues are raised here including whether the registration should have been granted in the first place, although, in theory, there's no objection to registering a mark that relates to a book series, as opposed to a title of a single book. It's also important to understand that registration is not the same as owning the mark - it gives benefits to the registrant but it's of course possible to claim an unregistered mark as valid. So even if the registration is cancelled, there may be questions as to whether there's a valid unregistered mark in play. There's a useful summary of the situation and relevant legal issues here.

Monkeys and Copyright

For anyone who has been following the copyright litigation involving the infamous "monkey selfie", the 9th Circuit Court of Appeals this week seems to have brought the matter to a close for now, ruling (after relevant parties reached a settlement) that animals cannot hold copyrights under U.S. copyright law, a proposition that no copyright lawyer probably ever doubted.

PETA had been pursuing the action on behalf of the macaque monkey who had used freelance photographer David Slater's camera to take selfies which became an Internet sensation among other things.

Earlier chapters in the litigation had focused on whether Slater himself could claim copyright given that he was not the person who actually took the photographs, but the case took a turn into the more abstract question as to whether the monkey could claim copyright. That question seems for now to have been put to rest. It's certainly been an interesting case to follow, and it likely has ramifications for questions about digital technology in terms of claiming copyright in works made by machines and other technological devices. It's typically been accepted that U.S. copyright law requires the efforts of a human creator in order to claim copyright, but questions have arisen about whether machines programmed by humans meet that definition. Creations by animals have been regarded as a related issue.

A summary of this week's decision is available here.

Finding Vivian Maier

In 2009 an 83-year-old, destitute former nanny named Vivian Maier died in Chicago without a will and with no known heirs.

Vivian Maier’s story might have ended there, but it turns out she was no ordinary nanny. In battered suitcases and jam-packed storage lockers, she left behind more than 100,000 photographic prints and negatives that she took during her long and outwardly unremarkable life. Through an almost unbelievable sequence of fortuitous events, her photographs miraculously escaped a Chicago landfill and eventually became recognized as important works of art, leading Maier herself to achieve posthumous acclaim “as one of the 20th century’s great photographers.”

MLK

Wednesday, April 4 marks a half century since the assassination of the Rev. Dr. Martin Luther King Jr. at the Lorraine Motel in Memphis, Tennessee.  

In the pantheon of American heroes, King stands alongside George Washington and Abraham Lincoln as one of the most iconic and important leaders in the nation's history. Just as Washington helped establish the new nation and Lincoln helped hold the Union together during a devastating civil war, King articulated a vision of what the nation could, should and must be—a diverse and inclusive republic committed to liberty, equality, opportunity, and justice for all. Although it is self-evident that the United States has still fallen far short of achieving his vision, King's monumental “I Have a Dream Speech,” delivered on the National Mall in August 1963, remains the defining speech of modern American history.

Amazingly, King was only 39 at the time of his death. To put that in context, King was four years younger than Washington when he took command of the Continental Army in 1775 and 13 years younger than Lincoln when he became president in 1861. Moreover, King first emerged as a leader of national importance at age 26, when he helped lead the Montgomery Bus Boycott in December 1955. Thus, between the ages of 26 and 39—a time when the vast majority of people are only beginning to find their way in the world—King challenged the racial and class hierarchy of American life and in the process helped redefine the meaning of the American Dream. 

Commentary in the “Got To Give It Up” vs. “Blurred Lines” Copyright Case

I haven’t had much of a chance in this space to discuss one of my longest- and best-beloved areas of substantive law—copyright.  Last winter, I had the privilege to co-author (with Howard Abrams of Detroit Mercy) an amicus curiae brief on behalf of fourteen of the most accomplished musicologists in the country.  The brief was filed in support of Motown giant Marvin Gaye’s family (Gaye passed away in 1984) in the Ninth Circuit appeal of the celebrated case claiming that the 2013 hit “Blurred Lines,” written and performed by (among others) Robin Thicke and Pharrell Williams, infringed Gaye’s 1976 soul-funk classic “Got To Give It Up.”  The Gayes won several million dollars in unpaid royalties at trial.  Thicke and Pharrell were displeased.

Among the commentary that has been offered on the case was an op-ed in the San Francisco and Los Angeles Daily Journal raising the apocalyptic admonitions about the End of the World as We Know It that are often rolled out when someone is caught using somebody else’s work without paying for it.  You can find my response (originally entitled “Robin Thicke’s Rumors of the Death of Popular Music Are Greatly Exaggerated” but somewhat shortened by the headline editor), published earlier this week in the same papers, here.  Unfortunately both pieces are behind the Daily Journal’s paywall, but that’s what they insisted on.

The case was argued earlier this month.  Stay tuned for a decision whenever the Ninth Circuit is ready.

--Bernie

Intellectual Property Scholarship Redux Conference: UNH School of Law

From our friends at the UNH School of Law (and one of the more interesting ideas I've seen for an intellectual property scholars' conference recently) ....

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CALL FOR PRESENTATION PROPOSALS AND PAPERS: THE INTELLECTUAL PROPERTY SCHOLARSHIP REDUX CONFERENCE @ the University of New Hampshire School of Law on Friday, April 6 and Saturday, April 7, 2018.  

 

Any intellectual property scholar who has published a significant work of intellectual property law scholarship three or more years ago in a law review is invited to revisit this article at the Intellectual Property Scholarship Redux Conference!  Pick a scholarly work you are very proud of, and convince conference participants that you were prescient!  Or choose one you wish you’d written differently, and explain to conference participants where you went wrong.  Did your piece get cited a lot? Were those citations positive? What response did the article get from law professor colleagues, and why?  Have circumstances changed since your original publication that alters the way you analyze the problem? Did a judge “borrow” your analysis?  We think this will be a really interesting conference.  Help us make sure that it is! 

 

We also invite you to submit a related short essay (10,000 words maximum) for publication consideration by IDEA: The Journal of the Franklin Pierce Center For Intellectual Property.  We will need an edit-ready draft by June 15, 2018.   Preference will be given to presentation proposals that include a related essay, which gives participating legal scholars a great opportunity to cite themselves repeatedly without shame!

 

The deadline for submitting Presentation Proposals is January 31, 2018.  Selected Proposals will be announced shortly thereafter.

 

All proposals to present (and any questions you have) should be emailed to [email protected] and [email protected]   

 

Reimbursement of reasonable travel and lodging expenses is available for intellectual property law scholars whose presentation proposals are accepted.  And we always have great food at our conferences!  We look forward to welcoming you to the University of New Hampshire School of Law in beautiful Concord, New Hampshire in April!

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The Patent Venue Fight: The Final Chapter?

In previous posts here and here, I've describe the fallout from the Supreme Court's TC Heartland decision, which began to break up the Eastern District of Texas' hold on a large share of district court patent litigation. As further detailed here, I further described that the Eastern District of Texas' interpretation of 28 USC section 1400(b), which was construed in TC Heartland, authorized venue there even if the defendant had no physical location within that district.

Late last week, the Federal Circuit changed that. Issuing this order on a petition for mandamus in In re: Cray, the appellate court held that it was error for the district court to refuse to transfer that case. 

In particular, this newly-issued decision held that a "regular and established place of business" under 28 USC 1400(b) for patent cases must include these three components:

• there must be a physical place in the district; 
• it must be a regular and established place of business; and
• it must be the place of the defendant.

In Cray, the district court had founded venue based on the fact that a single sales employee worked from home within the Eastern District of Texas. The defendant did not pay that employee for the use of his home to operate business there, and that employee did not keep any product or product literature there. It was not listed anywhere as an address of the defendant Cray. In particular, the district court held that venue was proper and "the lack of a physical building in the district is not dispositive" of the finding that a company has a "regular and established place of business" in a district.

Rejecting this interpretation, the Federal Circuit found that this interpretation expanded the statute beyond its literal terms, finding that "there must still be a physical, geographical location in the district from which the business of the defendant is carried out." Further, this must be a business of the defendant, and not merely the defendant's employee. Finding the standard was not met, the Federal Circuit granted the petition and directed the district court to transfer the case to an appropriate district.

In Cray, the Federal Circuit recognized that a business might be operated from someone's home, in which case it could be considered the "regular and established place of business" for  venue purposes.  Certainly, it would appear that companies with retail locations selling infringing products might be proper defendants there. Unquestionably, a defendant can be section 1400(b) in its state of incorporation. In other words, there are plenty of options outside the Eastern District of Texas for patent trials moving forward.

Venue, T.C. Heartland and Patent Litigation

Thanks to Dan and everyone for making me feel welcome here at the Lounge. As Dan said in his welcome post, my primary areas of interest include intellectual property, creativity, innovation and related technology topics. 

One topic that's caught my eye over the summer is the aftermath of the U.S. Supreme Court's TC Heartland v. Kraft Foods, decided in May 2017. This decision considered the construction of the words “where the defendant resides” in 28 U.S.C. § 1400(b), which governs venue in patent cases and reads in relevant part: 

Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.

Prior to the Court's decision, research by Brian Love  and James Yoon, more than a third of patent suits filed from 2014 to 2007 were brought in the Eastern District of Texas. Unlike Silicon Valley or other tech-heavy areas of the country where patent cases might more naturally be filed, the Eastern District of Texas was a curious place for plaintiffs to file. According to The New York Times "In recent years, a single judge based in Marshall Texas  oversaw about a quarter of all patent cases nationwide, more than the number handled by all federal judges in California, Florida and New York combined." The reasons that patent owners appeared to prefer this district are myriad, including a number of procedural advantages. 

This circumstance was facilitated by a construction of the patent venue statute which allowed suit to be filed where ever the defendant engaged in infringement, which was reversed by the Court's TC Heartland. In essence, TC Heartland held that a defendant "resides" only in its state of incorporation. Thus under the relevant venue statute, defendants can be sued for patent infringement where the entity is incorporated or where the defendant has committed acts of infringement and has a regular and established place of business.

According to data gathered from Lex Machina, during the three month period before TC Heartland was decided, most patent filings were filed in the Eastern District of Texas:

During the three months since, the District of Delaware has pulled ahead as a popular filing district, likely because so many corporate entities are incorporated in that state.  In addition, the Northern District of California has emerged as a top-five contender, perhaps because accused infringers may be based in Silicon Valley and thus have an "established place of business there."

Still, there are a significant number of new suits that continue to be filed in the Eastern District of Texas. I'll speculate about some possible reasons for that circumstance in an upcoming post early next week.

The University of Akron: Director, Center for Intellectual Property Law and Technology

The University of Akron School of Law invites applications and nominations for the position of Director of the Center for Intellectual Property Law & Technology, a tenure-track or tenured faculty position, with an anticipated start date of August 2017.  Review of applicants will begin immediately and continue until the position is filled.  The Committee is open to candidates in any area of IP, but experience and expertise in the areas of Copyright, Internet Law, Privacy, International IP, and Health Law are of particular interest.

Akron Law's Center for IP Law and Technology is renowned for its extensive curriculum, an LL.M. in IP, joint degree program, non-J.D. and post-J.D. certificates, rich scholarly and practical programming, and strong relationship with the national and international IP community. 

The Director of the Center for Intellectual Property Law and Technology is responsible for developing, articulating, and implementing a long-term vision for the Center that will achieve greater distinction for the University of Akron School of Law. The Director, in coordination with the Associate Dean for Academic Affairs, is responsible for implementing the IP curriculum within the School of Law. The Director also manages and supervises the law school’s special IP degree and certificate programs, and may help propose and create additional new programs in intellectual property for attorneys and other professionals as appropriate.  The Director is responsible for the management and coordination of all law school programming in the area of intellectual property law, including programs for both attorneys and academics.

The Director fosters and advances external relationships, including the law school’s ongoing international relationships with other universities, where those relate to intellectual property and technology. The Director also works with the law school’s Intellectual Property Advisory Council in advancing the intellectual property program.  The Director serves as a faculty advisor to the Intellectual Property and Technology Law Association, a law student organization, oversees the advising related to the annual issue of the Akron Law Review devoted to intellectual property law, and also oversees the law school’s participation in intellectual property-related moot court competitions.

As a member of the law school faculty, the Director will engage in relevant scholarship, teach in the area of intellectual property law, and serve on administrative committees. 

The University of Akron School of Law is a public, mid-size law school of approximately 450 students located in the Akron/Cleveland metropolitan area.  Akron Law offers excellent teaching, relatively low tuition and a commitment to student success.  Akron Law prides itself on outcomes including our high bar passage rate, award-winning clinical programs, national championship trial team program, outstanding job placement rate, and various areas of academic excellence in which students can distinguish themselves.

Required Qualifications: Juris doctor or equivalent law degree with intellectual property law experience.

Preferred Qualifications:  A demonstrated record of successful scholarship and teaching and commitment to continue producing both at a high level; record of or potential for appropriate administrative leadership; entrepreneurial skills to advance the impact of the Center; ability to create and sustain a network of IP leaders; ability to articulate and implement long-term vision to achieve greater distinction for Akron Law’s IP program.

For complete details and to apply for this position, visit: http://www.uakron.edu/jobs.  Job ID#10009.  While all candidates are required to submit their applications via this centralized system, please feel free to direct any inquiries to Professor Tracy Thomas, Chair of the search committee, at [email protected]. Review of applications will begin immediately.  Anticipated start date: August 2017. The University of Akron is committed to a policy of equal employment opportunity and to the principles of affirmative action in accordance with state and federal laws.

Star Trek Copyright Infringement Claim Settles

I usually try to keep my geekery off the blog, but I've been watching the recent litigation involving the AXANAR (Star Trek fanfiction) film with interest in recent weeks. After the District Court for the Central District of California found on January 3 that the fanfiction film could not avail itself of the fair use defense to copyright infringement, the case went on to settle last week. The settlement reportedly includes the stipulation that the defendant adhere to a new set of fanfilm guidelines put forth by Paramount (which owns the relevant copyrights). These guidelines will likely affect future fanfilms. Presumably, if you adhere to the guidelines, you're working under a license from Paramount and won't have infringed copyright. The guidelines state that fanfilms have to be less than 15 minutes long and cannot use "Star Trek" in the title, among other things.

In some ways, it's actually helpful to fans when copyright holders set out guidelines like this, to make it clear precisely what fan activities are allowed with the copyright works. The Kindle Worlds program set up by Amazon a couple of years ago takes a similar approach to promulgating guidelines set out by the copyright holders of works included in the program to allow fans to make their own fanworks without infringing copyrights i.e., effectively under license from the copyright holders.

The downside is that it's possible, and indeed likely, that many of the guidelines now being put forth by copyright holders about fanfiction are actually more restrictive than, say, the fair use defense to copyright infringement might allow, but with the guidelines in place, many fans may take the path of least resistance (resistance is futile?) and comply with the guidelines for avoidance of doubt.

Creators of fanworks have not had much clear guidance from the law about when, and whether, their works are fair use - it's very difficult to make such determinations in the abstract and copyright law really requires these issues to be decided on a case by case basis. Several law professors (notably Rebecca Tushnet) have done a lot of extremely useful scholarly work over many years on fanfiction and copyright infringement, but we still have a long way to go in educating fan creators about their rights and obligations.

What kind of impact might the Star Trek infringement settlement have on the scope of fanfiction and fair use, if any? Or are we just seeing more of the same in the battle between content owners and fans?

CRISPR in Agriculture: An overview of the gene-edited food that probably isn't a GMO

On Monday of this week, TIME announced its 2016 Person of the Year shortlist. Many of the names were unsurprising: Donald Trump, Hillary Clinton, Simone Biles, and Beyoncé Knowles all seem to make sense. One entry in particular, however, seemed like a bit of an outlier -- the CRISPR Scientists. As outlined in TIME's announcement: 

These scientists have developed a groundbreaking new technology that can edit DNA, a technique that has the potential to transform science and the human experience, as it could be used to find and remove mutations responsible for incurable diseases.

I've been following this technology for a little while, so when the announcement was released, I immediately wondered how it would impact everything else happening in the food law arena right now and in the future.

CRISPR, the shorthand reference for "clustered regularly interspaced short palindromic repeats" (pronounced crisper), has been touted as a technology that has the potential to quite literally change the world. Scientists believe it can be used for everything from potentially curing cancer, to saving the lives of children who are allergic to vaccinations, to de-extinction of the wooly mammoth.

With 13th, Netflix May Be Relaxing Its Streaming Policy a Little, Which is Good for Educators

Hi - I'm excited to be guest blogging this month about a few topics that I find engaging. I hope they are also relevant to many of you. Thank you to the moderators for this opportunity.  

Like many people, I scroll through Twitter looking for comments and articles about things that interest me. Last week, I saw the following exchange between film director extraordinaire Ava DuVernay and Alex Lauth, an employee of Villanova Law School:

@AVAETC I work at Villanova Law School and we want to have a showing of #The13th for students in our MLK programming week. Is that allowed?

— Alex Lauth (@AlexLauth) November 29, 2016

Yes. Public screenings of @13THFilm are allowed by Netflix in a first-of-its-kind general waiver ever made by the company. Show + share. ✊🏾 https://t.co/PnpSIefBiU

— Ava DuVernay (@ava) November 29, 2016

 

My interest was immediately piqued for several reasons. First, as a law professor committed to social justice, it is encouraging to read that law schools around the country are providing space to screen 13th, the Netflix documentary film directed by DuVernay centering on racial inequities in the American criminal justice system.

Second, I’ve been planning a January 2017 screening of 13th at my own law school, outside of my standard classes, that I'd like to be open to the full campus. I have a Netflix membership and could easily stream the film from my personal account. One of the items on my to-do list has been to figure out whether such an approach is permissible under both Netflix policy and current copyright law. This proved to be more challenging than I thought, so DuVernay’s announcement was quite timely.

I had experienced some difficulty determining Netflix’s full policy on streaming films for educational purposes, either inside or outside of the classroom. The Netflix terms of use state that the service is for personal use only, and users “agree not to use the service for public performances.” A public performance is basically a showing open to anyone other than family or a small group of friends. As the copyright owner of 13th, Netflix can limit how members use its service to watch the film and restrict larger performances. Section 106 of the Copyright Act gives copyright owners the exclusive right to, among other things, display and perform (show) films publicly. This arguably means that streaming for educational purposes is prohibited by Netflix's terms of use.

A Gray Hair Reflects

    I have had the privilege of being a member of the legal community since the early 1980s and of legal academia since the early 1990s. It used to be that I would look around at a conference and note that a majority of the attendees were peers of approximately my age. Well, that era has ended. Unless there is far more use of cosmetic surgery and hair dye within our community than I would guess, legal academia has moved to the next generation. As I have spent the day listening to presentations at IPSC, my optimism about the next generation’s custodianship of the Academy is reassured.

    When I was a pup, the raging intellectual battle in my field was how could we possibly deal with this new thing: computer software. For some, programs required a radical transformation of the law because now “things are completely different.” For others, programs were nothing but a new way to write down information, so “nothing needs to change.” By the 1990s, two things became clear: (1) both sides of the debate were wrong but (2) the debate itself was critical for determining which analogies in the existing law would work for software and where the underlying concepts required modification to adjust the system to the new innovation.

    Well, now the debate in my field has moved to artificial intelligence. If a computer generates a new invention, who owns the patent rights? It is not that this debate first came up this year as several of us have written about the area or the related copyright question years ago. The difference is that what could be predicted as technologically possible twenty years ago has become real. Computers are generating things that are outside of the scope of the programmer’s abilities and intellectual property protection for the innovations is being sought.

    Not surprisingly, today’s battle is the same pattern as the one in the 1980s. The forces of “things are completely different” and of “nothing needs to change” are assaulting each other's castle. It is clear that the proponents of each feel that everything depends on winning the day. The cynical approach would be to predict the ultimate result: the castles of both groups will be destroyed and only rubble will remain, but I am not that cynic. For me it seems clear that the Academy is at it again and out of the battle will come the analytical advances that are necessary to continue moving us forward. In the mean time, for all of you who do not see the clear logic of my side of the argument: watch your flank!

How Should We Think About Whether To Donate Our Leftover, Non-Identified Tissue to Research?

Proposed changes to the federal Common Rule that governs most human subjects research would ask patients for the first time to decide whether to allow their non-identified, leftover tissue to be used for research or thrown away. For that choice to be meaningful, the public needs to be aware of the nature, risks, and benefits of biospecimens research, and of what the proposed changes will—and will not—do. In my latest Forbes essay, "No, Donating Your Leftover Tissue To Research Is Not Like Letting Someone Rifle Through Your Phone," I consider the power of analogies and other reflections on a recent New York Times op-ed on these proposed changes by Rebecca Skloot, author of The Immortal Life of Henrietta Lacks.

Faculty Positions: University of Akron School of Law

The University of Akron School of Law is looking to hire two intellectual property professors. Details below...

Patent Position

The University of Akron School of Law anticipates hiring a tenure-track or tenured faculty member with a particular focus in the area of patent law to begin teaching in Fall 2016.  Experience in the areas of International IP, Health, Trademark, and Privacy Law are also of particular interest.  The committee is interested in candidates with scholarly distinction or great promise as demonstrated by strong early scholarship and a thoughtful agenda for future work, as well as a commitment to excellence in teaching. 

Akron Law's Center for IP Law and Technology is renowned for its extensive curriculum, an LL.M. in Intellectual Property, joint degree program, rich scholarly and practical programming, and strong relationship with the national and international IP community. 

The University of Akron School of Law is a public, mid-size law school of approximately 450 students located in the Akron/Cleveland metropolitan area.  Akron Law offers excellent teaching, relatively low tuition and a commitment to student success.  Akron Law prides itself on outcomes including our high bar passage rate (first in Ohio for the Feb. 2015 exam), award-winning clinical programs, national championship trial team program and various areas of excellence.

The University of Akron (UA), Ohio's Polytechnic University, is the region's most influential public research university, contributing to the resurgence of the local economy, providing a highly skilled workforce, and known for an innovative approach to higher education.  With nearly 26,000 students and more than 300 associate, bachelor's, master's, doctorate, and law degree programs, UA offers career-focused and experiential learning that defines the polytechnic approach to education.  From polymers to psychology, to engineering and integrated marketing communications, to education and choreography, UA brings together various disciplines in ways that provide students with life-long skills, internships and co-ops, opportunities for academic research, study abroad, on-campus student employment and service projects designed for diverse groups of learners, including full-time, part-time and on-line students, veterans, and adults returning to the classroom.

Required Qualifications: Juris doctor or equivalent law degree with patent law experience.

Preferred Qualifications:  A demonstrated record of or potential for successful scholarship and teaching. 

For complete details and to apply for this position, visit: http://www.uakron.edu/jobs.  Job ID# 9216.  While all candidates are required to submit their applications via this centralized system, please feel free to direct any inquiries to Professor Sarah Cravens, Chair of the search committee, at [email protected]. Review of applications will begin immediately.  Anticipated start date: August 15, 2016. The University of Akron is committed to a policy of equal employment opportunity and to the principles of affirmative action in accordance with state and federal laws.

 

IP Position

The University of Akron School of Law anticipates hiring a tenure-track or tenured faculty member in the area of intellectual property law to begin teaching in Fall 2016.  Experience in the areas of International IP, Health Law & IP, Trademark, Cyberlaw, and Privacy Law are of particular interest.  The committee is interested in candidates with scholarly distinction or great promise as demonstrated by strong early scholarship and a thoughtful agenda for future work, as well as a commitment to excellence in teaching. 

Akron Law's Center for IP Law and Technology is renowned for its extensive curriculum, an LL.M. in Intellectual Property, a joint degree program, rich scholarly and practical programming, and strong relationship with the national and international IP community.

The University of Akron School of Law is a public, mid-size law school of approximately 450 students located in the Akron/Cleveland metropolitan area.  Akron Law offers excellent teaching, relatively low tuition and a commitment to student success.  Akron Law prides itself on outcomes including our high bar passage rate (first in Ohio for the Feb. 2015 exam), award-winning clinical programs, national championship trial team program and various areas of excellence.

The University of Akron (UA), Ohio's Polytechnic University, is the region's most influential public research university, contributing to the resurgence of the local economy, providing a highly skilled workforce, and known for an innovative approach to higher education.  With nearly 26,000 students and more than 300 associate, bachelor's, master's, doctorate, and law degree programs, UA offers career-focused and experiential learning that defines the polytechnic approach to education.  From polymers to psychology, to engineering and integrated marketing communications, to education and choreography, UA brings together various disciplines in ways that provide students with life-long skills, internships and co-ops, opportunities for academic research, study abroad, on-campus student employment and service projects designed for diverse groups of learners, including full-time, part-time and on-line students, veterans, and adults returning to the classroom.

Required Qualifications: Juris doctor or equivalent law degree with intellectual property law experience.

Preferred Qualifications:  A demonstrated record of or potential for successful scholarship and teaching. 

For complete details and to apply for this position, visit: http://www.uakron.edu/jobs.  Job ID# 9214.  While all candidates are required to submit their applications via this centralized system, please feel free to direct any inquiries to Professor Sarah Cravens, Chair of the search committee, at [email protected]. Review of applications will begin immediately.  Anticipated start date: August 15, 2016. The University of Akron is committed to a policy of equal employment opportunity and to the principles of affirmative action in accordance with state and federal laws.

GW Intellectual Property Fellowship

The George Washington University Law School is now accepting applications for the 2016-2018 Frank H. Marks Intellectual Property Fellowship.

 

The Marks Fellowship is designed to assist attorneys who are interested in pursuing a full-time legal academic career in some area of intellectual property law. In the past, Marks Fellows have joined GW Law from judicial clerkships as well as from private practice and other legal positions.

 

The successful candidate will also serve as a Visiting Assistant Professor of Law at GW Law from August 2016 through August 2018. During that time, the Marks Fellow will teach one course per academic year, will assist with the administration of the GW Law's renowned Intellectual Property Program, and will have the opportunity to pursue scholarly projects, typically resulting in articles for publication in law reviews. Marks Fellows normally apply for full-time legal academic positions during the fall semester of the second year of the Fellowship. All previous Marks Fellows have gone on to hold tenure-track or tenured positions at law schools.

 

Electronic applications should include:

 

a resume;

a list of references, including academic references;

a law school transcript;

a copy of of (or link to) a sample of a published work or other writing in law or a related field; and

a proposal describing the candidate's scholarly interests, including the specific project or projects he or she aims to complete while in residence at the law school.

Please send applications, questions, or inquiries to:

 

Michael Goodman, The George Washington University Law School, 2000 H Street, NW, Washington, DC 20052, [email protected]