Intellectual Property Topic ProposalClint Woods

Why Intellectual Property?

Having decided to debate a domestic, legal topic next year, it is essential to craft a unidirectional resolution, with an implied or listed mechanism(s) that accesses a variety of domestic and international ground. Rather than limit ourselves to a single content area (war on terror, internet, prisons), an intellectual property rights topic would provide a useful balance between argumentative diversity and constrained limits. It would be a disservice to choose a resolution that failed to directly address the nexus of technology and the law. This intersection (including, but not limited to, the ramifications of the internet, peer-to-peer file-sharing, biotechnology, medical research, software, and traditional knowledge for our intellectual property regime) is particularly valuable for college students whose lives are impacted daily by such innovations. Such a topic would not, however, be limited to such technological questions and would likely engage many of the other proposed content areas. As law professor Peter Yu explains, “The intellectual property system affects more than just technology and innovation. It touches on many other areas, such as agriculture, health, education, culture, competition, trade, and democracy.”1

I was once told that a good debate topic is timely, relevant, and balanced. With recent major administrative, judicial, and legislative decisions regarding the patent process, copyright protections, genetic property, the sharing of music and other mediums, and the scope of patentable subject matter, the precarious future of international IP harmonization efforts, the WTO and the Trade-Related Aspects of Intellectual Property (TRIPs) agreement, and momentous technological innovation afoot, this topic is certainly ripe. As mentioned above, this topic surely affects the everyday lives of students (from novices to varsity debaters). While there is obviously some degree of esoteric, legalistic knowledge involved, this seems endemic to any legal resolution the community chooses. Although such a framing may not be particularly useful for policy analysis,2 the debate over domestic intellectual property protection is seriously bipolar and balanced. Whether called corporate and consumer interests, IP rights and the public domain, high-protectionist and low-protectionist, or maximalist and minimalist, there are well-defined and articulated advocacies on both sides of this controversy. This importance of these arguments cannot be understated. As David Nelson characterizes it, “the outcome of this debate will likely determine whether, as Stanford law professor Paul Goldstein argues, property rights will extend ‘into every corner in which people derive enjoyment and value… with a price tag attached to each use,’ or whether, as Thomas Jefferson advised, ideas will ‘freely spread from one to another over the globe.’”3

Topic Direction

This paper endorses a topic that forces the affirmative to restrict the stringent protection of intellectual property, for three reasons. First, the evolution of intellectual property points in this direction. Some have described the status quo as a “second enclosure movement,” with the 1 Peter Yu, “Intellectual Property and the Information Ecosystem,” Michigan State Law Review, Spring, 2005, LN.2 Ibid.3 David Nelson. “Free The Music: Rethinking the Role of Copyright in an Age of Digital Distribution.” Southern California Law Review, 1/2005, LN.

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rapid creation and expansion of IP rights, increasing privatization of information, and greater protection moved upstream. Second, this evenly distributes the ground, ensuring the defense of the public domain, research interests, and technological dispersal for the affirmative, and the economic, political, and geopolitical consequences for the negative. This would also magnify negative link ground relating to perception and predictability (as the affirmative would be forced to reverse a general trend and precedent). Third, this guarantees a unidirectional and still relatively large topic area. Depending on the exact wording, there would be affirmatives relating to specific mechanisms, individual types of property, and particular court cases. The negative would be able to develop kritik and disadvantage links to undermining strong IP protection and the specific avenue the affirmative chose.

Haven’t We Done This Before?

The prevalence of IPR debates on the China topic (a very popular affirmative), the Europe topic (a relatively unexplored subsection related to IPR harmonization with the EU), and the Indians topic (a few arguably anti-topical affirmatives dealing with protection of indigenous genetic material) may convince some that such a topic is repetitious and undesirable. This complaint is short-sighted and mistaken for three reasons. First, IPR was simply a peripheral issue on all of these topics. Despite the frequency of WTO/IPR debates on the current China topic, the primary arguments revolve around Chinese, not American, domestic enforcement, the usefulness of pressure, and the desirability of international trade. Furthermore, our experience with this topic demonstrates the value of this topic- this resolution would require affirmatives to take action in the other direction, guaranteeing new, interesting, and unique debates that are not perpetually denied by the weekly actions of the Bush administration. There were fewer than five DNA IPR cases read on the Europe topic, and they were so dispersed (from compulsory licensing to indigenous gene patents to public morality clauses to computer homology processes) that no common consensus or experience was formed. Most current debaters did not debate the Indians topic (except those professional debater types) and there were only two or three IPR affs. Second, a large percentage of those debating this resolution will be newer debaters, with little to no experience debating such issues. Recent high school resolutions have also only peripherally addressed the IP literature. Third, the timeliness and importance of this resolution for any understanding of domestic law, technology, and innovation makes its exclusion unacceptable. Rapidly evolving caselaw and new USPTO administrative rules make many of these already-debated terrains new and enhanced.

Affirmative Ground

A. Research and Public Access

Stringent protection of patent rights has precluded the research, experimentation, and production of genetic material, pharmaceutical drugs, and other patented material. This protection allows owners to essentially freeze public-interest ventures, requiring large sums of money for the use of such information. For example, the Salt Lake City-based company Myriad has patented BRCA1 and BRCA2, the genes found to be related to breast cancer. They therefore maintain a monopoly on all genetic breast research, holding scientists and researchers working for the public good hostage. Affirmatives can therefore argue that public efforts, in universities

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and other settings, are essential to development of cheap life-saving drugs, cures for cancer, AIDS, and other illnesses, and other medical and technological innovations. Potential affirmatives that address these questions would include applying compulsory licensing, lowering the standards for challenging infringement suits, an experimental use defense, and waivers for public research.

B. Corporate Interests

Affirmatives could argue they tip the balance between corporate and consumer interests back in favor of individuals. Various critical arguments about capitalism, discussions of food and drug prices, and other advantage scenarios are therefore accessible.

C. Geopolitical Advantages

The affirmative could also argue that increasing public domain access to intellectual property would beneficially affect international cooperation and harmonization efforts. For example, removal of the unpredictable and overly stringent “best mode” requirement would be palatable to developing countries, preventing the crowd-out of their products by TRIPs-compatible protections. Limiting patent protection of genetic material would massively improve US-European IP collaboration and harmonization. Furthermore, use of compulsory licensing for generic drugs would encourage cooperation and economic development with India over pharmaceuticals.

D. Commodification

Affirmatives that dealt with guardianship of biotechnology and genetic intellectual property could claim that limiting this propertization prevents the increasing control of human bodies, with all of the attendant impacts (from calculability to biopower).

E. Food/Drug Access & Prices

Strong IP rights encourage technological suppression, patent-shelving, and obstruction of profit-marginalizing medicines and food. The result is also a rise in the price of food and drugs (with the corresponding death of billions). Affirmatives could potentially access these areas of the topic by utilizing compulsory licensing or technology suppression regulations. They could also argue that developing countries would follow this trend, providing cheaper generic drugs internationally.

F. Capitalistic/Western Exclusion of Indigenous and Traditional Knowledge

Critical ground would exist to argue that the individualistic and authorship-driven nature of the current IP regimes excludes the forms of cultural property valued by Native Americans and indigenous people. Specifically, affirmatives that curtail patents for genetic material could claim to address the issues of “biopiracy” raised by Vandana Shiva and others. As Howard University Professor Lateef Mtima puts it, “there is little question that the intellectual property law has far too often been deployed in the cause of profiteering exploitation and social injustice.”

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G. Agricultural Research/Farmers’ Rights

Exploitation of farmers and agricultural developers by the intellectual property held by corporations like Monsanto is another lucrative affirmative advantage area. From seed-hoarding to terminator technology, the current IP regime severely disadvantages these smaller producers.

Negative Ground

A. Rights-Based Critical Arguments

From Lockean to Randian, many advocates argue for a strong protection of current IP from a natural rights perspective. Affirmatives that endorsed the value of the public domain would link strongly to such positions.

B. Business Confidence/Economy Disadvantages

Reversal of precedent would likely have a serious effect on current economic relationships that assume the federal government’s strong guardianship of IP rights.

C. Developing Country Backlash

There is substantial evidence that developing countries see American efforts toward the IP public domain as the creation of an uneven playing field, regardless of TRIPs compliance. The response to such a move may include modeling reduced IP protection, a backlash to the global trading system, and a flooding of international markets with counterfeit goods.

D. Individual Industries Disadvantages

From software to nanotechnology to biotechnology to the biopharmaceuticals, a number of specific industries are largely reliant upon strong IP rights. The signal of the plan could trigger an assortment of impacts (beyond the economic consequences).

E. WTO/TRIPs

Many proposals that move in the direction of open access to intellectual property would be arguably non-compliant with elements of the TRIPs agreement, with subsequent impacts on US trade leadership and the functioning of international economic relationships. For example, plans would have to prove non-exclusive to be compliant.

F. Biopiracy

Although low-protectionists generally believe in indigenous rights, a system of stringent enforcement has become an important element of protecting traditional knowledge and culture. Affirmatives that undermine such a system may contribute to corporate exploitation of indigenous people.

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Other Issues (Ground for Both)

A. Innovation/Creativity/Inventiveness/Competitiveness

There is a lively debate over the effect of public domain IPR on innovation and technological progress. Many advocates of traditional stringent protection argue that this system is the only way to provide incentives to invent, disclose, and commercialize. Affirmative authors argue that greater access promote innovation, as it better balances producers and the public and offers the free availability of resources necessary for an “innovation commons.”

B. Harmonization

Various scholars make arguments for and against stringent IP protection to facilitate international harmonization, with the attendant access to economy, geopolitics, and trade impacts.

C. USPTO Backlog

A potential disadvantage, solvency argument, or solvency magnifier regards the “workload crisis” faced by the Patent and Trademark Office. Some affirmatives could claim to ease this bottleneck and, thus, improve the overall patent system.

D. Constitutionality

The role of constitutionality place an especially essential role on a domestic, legal topic. I predict the some segments of the community may argue that the constitutional arguments about certain proposals are an important framework question. Some have argued that legislatively-constructed IP regimes are not a legitimate power of the federal government.

Actors

There a variety of agents for such a resolution, assuming that the community is not only committed to a Supreme Court actor. Use of an open-ended actor (USFG) may facilitate better agent debates specifically related to IP protection and avoid the boring and repetitive institutional disadvantages and counterplans (from Hollow Hope to 9-0) that a court topic may engender. Among the federal government parties with some jurisdiction, advocates, and interest in intellectual property are the United States Patent and Trademark Office, the Supreme Court, Congress, the Federal Trade Commission, the US Trade Representative, and the Court of Appeals for the Federal Circuit (CAFC). The CAFC would provide a unique and interesting vantage point for a judicial topic, because the Supreme Court rarely hears IP cases and “the CAFC is tantamount to the final arbiter on a number of issues that are unique to patent law.” There is ample literature to facilitate specific and comparative agent discussions.

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Mechanisms

1. Change the scope of patentable subject matter

The question of whether certain “life forms, pharmaceuticals, medical devices, plant varieties, business methods, and software” are patentable is one at the core of affirmative ground.

2. Remove “best mode” requirement

While the best mode requirement forces inventors to disclose information to the public, the National Research Council and others have argued that this requirement is not updated. Therefore, it simply benefits the patentee and limits harmonization efforts.

3. Experimental Use Exemption

The common law and statutory justification for an experimental use exemption for public research with patentable materials has been recently scaled back by the courts, threatening basic science. There are a variety of proposals in this area.

4. Compulsory Licensing

There are a variety of advocates for application of compulsory licensing to certain industries and types of patents. There is a lively discussion about the impact of such licensing requirements on innovation, drug prices, and economic ties.

5. Eliminate copyright for music

Grounded in a belief in the inevitability of online music distribution, some legal scholars have argued that music copyright is an outdated relic, whose elimination would benefit artists.

6. Life science technology suppression regulations

Designed to prevent patent shelving and benefit public health, these regulations would stop business decisions about health products contrary to widespread drug and research access.

7. Exempt genetic material from IP infringement

This plan would change the definition of patentable materials, eliminating patents on human/plant genetic material.

8. Declare genetic patents non-obvious

This would be one route to eliminate many genetic patents- arguing that genetic patents fail to meet the non-obviousness standard for IP protection.

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9. Strengthen Utility/Non-obviousness standards

10. Change challenge to patents to a “preponderance of evidence”

This proposal would benefit the US PTO and make quicker and easier access for public researchers. Others have argued that this would simply result in more patents being pursued, ultimately raising massive transaction costs.

11. Amend Bayh-Dole Act

Although this would only deal with research related to the Act, this would likely modify Bayh-Dole to retain government rights for public research.

12. Waiver for public university research using patented material

This middle-ground plan would strike a balance- allowing public researchers to sign a waiver for use of patented items, if they agree to immediately publish all results and relinquish rights to any new discoveries. Some have argued that this waiver plan would not be utilized by researchers, as the cost of relinquishing are simply too high.

13. Create an affirmative defense for trade secret protectionism

This would justify the theft of trade secrets if they met certain conditions.

Recent and Relevant Court Cases

1. Diamond v. Chakrabarty (1980)

This 5-4 decision justified the commodification and patentability of germplasm and, in turn, other living material. They held that the threshold was not if a product was inanimate, but rather if it was a result of nature or human creation. This has set a precedent justifying a variety of IP protection over the humane genome and biotechnology tools. These affirmatives would alter the scope of patentable material.

2. Madey v. Duke University (2002)

One of two important cases regarding public experimentation and patented items, this decision rejected the common law defense of experimental use provided by Duke University in their use of protected laser technology. This was a wake-up call for universities and other research facilities, as it signaled that even non-commercial studies were subject to patent infringement. Negative authors argue that it is simply a minor inconvenience for universities, and that the CAFC provided a more certain and predictable standard for these institutions.

3. Integra Lifesciences v. Merck (2003)

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The other major experimental use case that rejected the statutory defense of the 1984 Hatch-Waxman Act’s research provisions. Commentators describe this as the most viable case to move toward a broader public domain usage of medical and technology research.

4. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster (2005)

The Supreme Court ruled that the makers of file-sharing software were liable for potential copyright infringement. The vague wording of this decision failed to establish a clear standard for advanced technology and software makers.

5. Eldred v. Ashcroft (2003)

This decision legitimated the Copyright Term Extension Act, explained below.

6. Ruckelshaus v. Monsanto Co. (1984)

This ruling established trade secrets as a form of IP- which strengthened industry, encouraged monopolization, and devastated research. Overruling this decision would help to create an affirmative defense for the theft of trade secrets that are beneficial to society.

7. State Street Bank & Trust Co. v. Signature Financial Group Inc. (1998)

This decision explicitly upheld patents for software and financial inventions.

Important Legislation

1. Digital Millennium Copyright Act

This 1998 law cracks down on illegal software and piracy. It has been argued that this freezes research, prevents legitimate webcasts at colleges/universities, and raises legitimate 1st amendment concerns.

2. Inducing Infringement of Copyright Act of 2004

This proposed 2004 law, originally designed to deal with child pornography, would risk crackdowns on use of I-Pods and peer-to-peer file-sharing. It has encountered massive opposition by internet groups.

3. Copyright Term Extension Act/Sonny Bono Act/ Mickey Mouse Act

This law added 20 years to a number of current copyrights, raising criticism of politicization and corporate greed.

4. Economic Espionage Act of 1996

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The Economic Espionage Act imposes criminal sanctions for stealing trade secrets- preventing the potentially life-saving theft of secrets that is sometimes necessary.

Wording Suggestions

These are very rough, inelegant potential topic wording for a resolution in this area. I have attempted to write a general wording for a broad topic, an overrule topic, a specified-mechanism topic (list), and a content-area topic. Each is followed by a brief discussion of the pros and cons. The terms “intellectual property” and “public domain” are both loaded, politicized terms whose definitions are discussed at length in the literature.4 While for simplicity’s sake I have used “limit intellectual property protection” in a couple of the resolutions below, a further investigation of the appropriate verbs and terms of art is necessary in the resolution-crafting process.

A. Broad

Resolved: The USFG should substantially restrict/limit intellectual property protection in the United States.

This topic has the benefit of elegance and simplicity (something people seem to think are in short supply on recent resolutions). The cases included would likely be unmanageable, as there is little to no constraint on agent, mechanism, or areas affected. This broadness would likely encourage a rush to the corners of the topic- only impacting a single patent, copyright, or trademark, which would seriously compromise predictable, negative ground.

B. Overrule

Resolved: The United States Supreme Court/Court of Appeals for the Federal Circuit should overrule/reverse one or more of the following decisions: -Diamond v. Chakrabarty-Madey v. Duke University-Metro-Goldwyn-Mayer Studios, Inc. v. Grokster-Eldred v. Ashcroft

This resolution would have the benefit of a single mechanism and a confined content area related to IP and technology. Whereas the proposals for an overrule topic of “all-star cases” would compel smaller teams to opt for generic courts/overrule strategies due to the diversity of content, this unidirectional topic would focus the resolution and still allow relative innovation.

C. Specified Mechanism

4 Yu; Richard Stallman, “Some Confusing or Loaded Words that are Worth Avoiding,” www.fsf.org; Stallman, “Did you Say ‘Intellectual Property’?”; Mark Lemley, “Propety, Intellectual Property, and Free Riding,” Texas LR, 2005; David Lange, “Reimagining th Public Domain,” Law & Contemporary Problems, Winter/Spring 2003.

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Resolved: The United States Federal Government should restrict intellectual property protection in the United States by:

- Application of an experimental use exemption to university research- Enactment of compulsory licensing on biotechnology, human genome, or generic drug

patents- Removal of the best mode requirement- Elimination of copyright protection for music- Alteration of the requirement for patent challenges to a preponderance of evidence

Although the community seems to have gripes with a topic that contains a list of mechanisms, this one would somewhat limited, with a single direction of actions and a diverse but similar pockets of affirmative and negative ground .

D. Content Areas

Resolved: The USFG should limit intellectual property protection in one or more of the following areas: biotechnology, genetic material, musical copyrights, traditional knowledge, medicine, trade secrets.

This topic may become unmanageable, but makes an effort at constraining the variety of IP choices available to the affirmative and provides some predictability in advantage and mechanism areas.

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Bibliography

General

Boyle, James. “The Second Enclosure Movement and the Construction of the Public Domain.” Law & Contemporary Problems (Winter/Spring 2003): LN.

Chander, Anupam, and Madhavi Sunder. “The Romance of the Public Domain.” California Law Review. (2004): LN.

Depoorter, Ben. “The Several Lives of Mickey Mouse: The Expanding Boundaries of Intellectual Property Law.” Virginia Journal of Law and Technology (Spring 2004): LN.

Federal Trade Commission. “To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy.” (2003): http:// www.ftc.gov/05/2003/10/innovtionrpt.pdf

National Research Council of the National Academies. “A Patent System for the 21st Century.” (2004): http://www.nap.edu/books/0309089107/html/

Posner, Richard. “Do We Have Too Many Intellectual Property Rights?” Marquette Intellectual Property Law Review (Summer 2005): LN.

Samuelson, Pamela. “Mapping the Digital Public Domain: Threats and Opportunities.” Law & Contemporary Problems (Winter/Spring 2003): LN.

United States Patent and Trademark Office. “The 21st Century Strategic Plan.” (2002): www.uspto.gov/web/offices/com/strat21/

Yu, Peter. “Intellectual Property and the Information Ecosystem.” Michigan State Law Review (Spring 2005): LN.

IPR & Technology

Black, Charles Allen. “The Cure for Deadly Patent Practices: Preventing Technology Suppression and Patent Shelving in the Life Sciences.” Albany Law Journal of Science & Technology (2004): LN.

Candeub, Adam, and Peter Yu. “Supreme Court Shouldn’t Decide Future of Internet.” Detroit Nes (March 29, 2005): LN.

Eisenberg, Rebecca, and Arti Rai. “Bayh-Dole Reform and the Progress of Biomedicine.” Law & Contemporary Problems (Winter/Spring 2003): LN.

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Paradise, Jordan. “European Opposition to Exclusive Control over Predictive Breast Cancer Testing an the Inherent Implications for US Patent Law and Public Policy.” Food and Drug Law Journal (2004): LN.

Raucci, Michael. “Congress Wants to Give the RIAA Control of Your IPod: How the Induce Act Chills Innovation and Abrogrates Sony.” John Marshall Law School Review of Intellectual Property Law (Spring 2005): LN.

Sabety, Ted. “Nanotechnology Innovation and the Patent Thicket.” Albany Law Journal of Science & Technology (2005): LN.

Wagner, P. Polk. “On Software Regulation.” Southern California Law Review (January 2005): LN.

Webbink, Mark. “A New Paradigm for Intellectual Property Rights in Software.” Duke Law and Technology Review (2005): LN.

Experimental Use/Madey/Integra

Cai, Michelle. “Madey v. Duke University: Shattering the Myth of Universities’ Experimental Use Defense.” Berkeley Technology Law Journal (2004): LN.

Dreyfuss, Rochelle. “Protecting the Public Domain of Science: Has the Time for an Experimental Use Defense Arrived?” Arizona Law Review (Fall 2004): LN.

Ebert, Lawrence. “In Favor of The Federal Circuit Position in Merck v. Integra,” Journal of the Patent and Trademark Office Society (April 2005): LN.

Eisenberg, Rebecca. “Patents and the Progress of Science: Exclusive Rights and Experimental Use.” University of Chicago Law Review (1989): LN.

Mueller, Janice. “The Evanescent Experimental Use Exemption from United States’ Patent Infringement Liability.” Baylor Law Review (Fall 2004): LN.

Compulsory Licensing

Chien, Colleen. “Cheap Drugs at What Price to Innovation: Does the Compulsory Licensing of Pharmaceuticals Hurt Innovation?” Berkeley Technology Law Journal (Summer 2003): LN.

Deforge, Sara. “A Tough Pill to Swallow: The United States’ Passive Efforts in Curtailing Intellectual Property Rights in Favor of Humanity.” Loyola Law and Technology Annual (Winter 2004): LN.

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Freeburg, Ruth. “No Safe Harbor and No Experimental Use: Is it Time for Compulsory Licensing of Biotech Tools?” Buffalo Law Review (Winter 2005): LN.

Roy, Debjani. “In Search of the Golden Years.” Cleveland State Law Review (2004/2005): LN.

Biotechnology & IPR

Aoki, Keith. “Malthus, Mendel, and Monsanto: Intellectual Property and the Law and Politics of Global Food Supply.” Journal of Environmental Law and Litigation (2004): LN.

Freeburg, Ruth. “No Safe Harbor and No Experimental Use: Is it Time for Compulsory Licensing of Biotech Tools?” Buffalo Law Review (Winter 2005): LN.

Stein, Haley. “Intellectual Property and Genetically Modified Seeds.” Northwestern Journal of Technology and Intellectual Property (Spring 2005): LN.

IPR Harmonization

Holbrook, Timothy. “The Treaty Power and the Patent Clause.” Cardozo Arts and Entertainment Law Journal (2004): LN.

Meller, Michael. “Principles of Patentability and Some Other Basics for a Global Patent System.” Journal of the Patent and Trademark Office Society (May 2001): LN.

Sommer, Andrew. “Trouble on the Commons: A Lockean Justification for Patent Law Harmonization,” Journal of the Patent and Trademark Office (2005): LN.

Constitutionality

Kieff, F. Scott. “Contrived Conflicts: The Supreme Court Versus the Basics of Intellectual Property Law.” William Mitchell Law Review (2004): LN.

Nachbar, Thomas. “Intellectual Property and Constitutional Norms.” Columbia Law Review (March 2004): LN.

Best Mode

Carlson, Dale, et al. “Patent Linchpin for the 21st Century?: Best Mode Revisited.” Journal of the Patent and Trademark Office (2005): LN.

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National Research Council of the National Academies. “A Patent System for the 21st Century.” (2004): http://www.nap.edu/books/0309089107/html/

IPR and Indigenous People

Gervais, Daniel. “Traditional Knowledge and Intellectual Property.” Michigan State Law Review (Spring 2005): LN.

Mtima, Lateef. “Intellectual Property and Social Justice.” Howard Law Journal (Winter 2005): LN.

Riley, Andrea.. “’Straight Stealing’: Towards an Indigenous System of Cultural Property Protection.” Washington Law Review (February 2005): LN.

Yu, Peter. “Traditional Knowledge, Intellectual Property, and Indigenous Culture.” Cardozo Journal of International and Comparative Law (2003): LN.

Music Copyrights

Carroll, Michael. “The Struggle for Music Copyright.” Florida Law Review (September 2005): LN.

Nelson, David. “Free The Music: Rethinking the Role of Copyright in an Age of Digital Distribution.” Southern California Law Review (January 2005): LN.

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