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Shaping the Uncertain Future of Copyright & Patent Law: Seth Waxman Delivers the 2010 Segal Lecture

March 02, 2010

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,” according to Seth Waxman, former Solicitor General and chair of the Appellate and Supreme Court Litigation Practice Group at the Washington, D.C. firm WilmerHale.

At the University of Pennsylvania Law School’s 2010 Irving R. Segal Lecture in Trial Advocacy, entitled “Shaping the Uncertain Future of Copyright and Patent Law,” Waxman outlined some of the central questions surrounding IP law: Who should decide it? 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. 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, there are so many new cases each year that most patent and copyright issues are left to the courts, according to Waxman. This has bred 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. Further complicating copyright law is the fact that, because each case is unique, it is difficult sometimes to decide when infringement has occurred: “It’s not clear how significantly a product must be altered to avoid a suit,” said Waxman.
As a result, companies often resort to private measures to avoid infringement, such as using encryption technology to protect their property. This is where anti-monopoly law becomes relevant. Waxman posed a question from an antitrust point of view: “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 currently 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 the business method a patent 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. intellectual property litigation.
“The Supreme Court is basically opening up an entirely new field for us,” Waxman said.