Intellectual property law is nothing new in the United States – Congress passed its first patent statute in 1790 – but it is "more consequential today than ever before," declared Seth Waxman during his Segal Lecture last February.
Waxman, former U.S. solicitor general, outlined some of the central questions surrounding IP law: Who should decide difficult questions of law and policy? How should innovation be encouraged, and infringement be remedied? How should IP law relate to regulatory law, such as antitrust restrictions? "With the pace of technology in our country galloping along, and our economy in the throes of radical change, I don't believe there is any more important area of law," said Waxman, currently chair of the Appellate and Supreme Court Litigation Practice Group at Wilmer Hale in Washington, D.C. In 2008 alone, nearly 500,000 patent applications were filed in the United States, of which about 200,000 were granted.
Although the constitution gives Congress power over copyright and patent law,most patent and copyright issues are left to the courts, according to Waxman. With the courts, judges decide some issues and juries decide others, but there is a "steady undercurrent of mistrust" about the ability of juries to decide complex infringement suits, he said.
On the production side, Waxman said, nobody knows how much incentive to provide IP innovators. Too much incentive leads to an overcrowded market, but too little can make innovation not worthwhile. One factor affecting this balance is whether rights can be enforced in practice. Copyright owners "increasingly find themselves playing whack-a-mole," he said.
As a result, companies often resort to private measures to avoid infringement, such as using encryption technology to protect their property.
Anti-monopoly law also affects the balance between innovation and free competition.
From an antitrust point of view, Waxman asked, "Where does the legitimate exercise of copyright law end, and the infringement on competition begin?"
Waxman described two recent IP law cases to illustrate these areas of ambiguity.
A group of publishers and authors sued Google for scanning and publishing online excerpts from books to which it did not have the rights. The parties worked out a "genuinely creative settlement," according to Waxman, where Google got non-exclusive rights to the material in exchange for sharing their revenues with rightsholders.
A case before the Supreme Court of the United States raises the question of whether a business method can be patented by linking it to particular software. Opponents say that intangible information is not patentable, and granting such patents would "open up backdoor patenting of business methods," according to Waxman.
"In a rational world, this would be dealt with broadly and proscriptively by Congress," Waxman said. "But if Congress doesn't act, this will fall squarely to the Supreme Court to decide." The Supreme Court is taking on more and more patent law cases, several of them filed by Waxman himself, and its decisions are truly defining the realm of U.S. IP trial litigation.
"The Supreme Court is basically opening up an entirely new field for us," Waxman said.