Blog Post

By: Milana Casillas

President Biden’s executive order on cryptocurrencies marks the first time the White House has formally weighed in on the growing development and adoption of digital assets.[1]

The March 9th order, titled Ensuring Responsible Development of Digital Assets, aims to make digital assets a government-wide priority and signals openness to their potential positive impacts, not just their enforcement challenges. [2]

The order calls for directed agencies across the federal government to study and generate reports on the potential of digital currencies. [3] The topics to be examined include consumer protection, data privacy, financial inclusion, and national security.[4] The array of topics demonstrates the potentially far-reaching implications of cryptocurrency and promotes equitable access to financial services and economic competitiveness. [5]

Further, the order calls for the study of a potential U.S. central bank digital currency (CBDC). [6] This would give rise to a “digital dollar,” ushering in an unprecedented level of U.S government adoption of blockchain technology.[7] Central banks outside of the U.S. have experimented with this concept, and Biden’s executive order implores the Justice Department to assess this possibility and what would be needed for its execution.[8]

While the executive order introduces the possibility of consolidating agency oversight, the order remains open and unclear on how such a consolidation would be executed.[9]Currently, responsibility for digital assets spreads across several agencies, including the U.S. Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), and the Internal Revenue Service (IRS).[10]

Biden’s executive order is an acknowledgment by the White House that the government has more progress to make in the area of cryptocurrency.[11] While the order lacked specificity as to the positions the administration wants government agencies to adopt, it is clear the U.S. is on, “the path of innovation as opposed to prohibition.”[12] This path taken by the U.S. might influence further adoption of innovation-friendly regulation globally.[13]

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[1] Elise Hansen, Biden Order Grapples with Crypto’s Rise Laws, LAW 360, (Mar. 9, 2022), https://plus.lexis.com/newsstand#/article/1472488.

[2]  The White House, FACT SHEET: President Biden to Sign Executive Order on Ensuring Responsible Development of Digital Assets (Mar. 9, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/03/09/fact-sheet-president-biden-to-sign-executive-order-on-ensuring-responsible-innovation-in-digital-assets/.

[3] Id.

[4] Id.

[5] supra note 1.

[6] Id.

[7] Marco Quiroz-Gutierrez, What are CBDCs? Biden’s Executive Order on Crypto may Lead to a U.S. Digital Currency, FORTUNE (Mar. 10, 2022), https://fortune.com/2022/03/10/biden-executive-order-crypto-u-s-digital-currency-cbdc.

[8] Id.

[9] Id.

[10] Sandali Handagama & Amitoj Singh, Biden’s Executive Order Draws Mixed Reactions From Global Crypto Community, COIN DESK (Mar. 11, 2022), https://www.coindesk.com/policy/2022/03/11/bidens-executive-order-draws-mixed-reactions-from-global-crypto-community/.

[11] Id.

[12] Id.

[13] Id.

By: Trisha Black

Our society is becoming more reliant on technology. As this happens, we are placing our information at more risk of being compromised. There is no way around using technology. As businesses and individuals strive for more efficiency, they adopt more technological advances to achieve that. With the increased use comes increased security concerns. Cybersecurity threats are increasing substantially.[1] API security incidents have impacted 95% of businesses in the past year.[2] Technology is becoming integrated with our physical infrastructure. As this happens the threats become significantly more detrimental to the country.

Lawyers and law firms are no different. They are trying to remain competitive and increase their efficiency, but lawyers are in a vulnerable position as they have requirements to protect their clients beyond the average business. Lawyers have a duty to maintain client confidentiality.[3] With few guidelines and regulations in place to ensure secure computing and technology, lawyers need to take responsibility for the security. This comes in the form of being more knowledgeable about cybersecurity.

Cybersecurity is a growing interest, and the recent events in Ukraine and Russia have increased the concern in our country.  Cyber-attacks are increasing, and most businesses are being impacted by them.[4] Most businesses are not implementing any additional protections against these attacks.[5] Though this is not unique to the legal field, the legal field is not immune. What recent events have shown is that attacks come in more than physical form.[6]  Kinetic attacks by Russia have been paralleled by cyber threats.[7] The unique aspect of this attack was that there was no attempt to take, but instead to destroy. They used something referred to as malware. Malware is not new, but the forms being used are. This is why the challenge with this tactic is creating problems in the cyber realm. The way the malware operates is that it spreads and deletes the data of the users. This malware can impact all users and would have grave consequences for large corporations and law firms.[8]

How can lawyers, companies and individuals protect their data? The Cybersecurity and Infrastructure Security Agency (CISA) is designed to help organizations and individuals protect their information.[9] CISA frequently publishes information to assist in protecting data across the United States.[10] They also assess the current risks and inform the general public of the potential attacks that they have observed or anticipate coming.[11] The attack on Ukraine has shown that there are many threats from foreign nations and by tracking and studying their tendencies, they can predict the threats that could be faced by the United States. Further, CISA provides information about who the threats may be coming from and what type of threats are given, with specific guidance on how these threats may be mitigated.[12]   CISA not only assesses the threats and provides guidance, but they also provide training on how to best handle the threats.[13]

 As we move towards a more internet, cloud computing, and IoT society we need to adapt our security measures to match. Law firms are beginning to want lawyers with cybersecurity expertise and companies are beginning to seek out counsel with an understanding of cybersecurity. Schools are beginning to offer more and more classes related to cybersecurity but that may not be enough for the growing concerns. Lawyers need to be current on the cybersecurity threats and ensure they are taking action to make certain their clients are protected. They also need to follow current research on the most significant threats and the guidance on how to protect the data of the organizations they work for and the clients.

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[1] API attacks increase 681% in the last 12 months, Security Magazine (Mar. 2, 2022), securitymagazine.com/articles/97178-api-attacks-increased-681-in-the-last-12-months.

[2] API Attacks Rose 681% in the past 12 Months, Compared to a 321% increase in Overall API Traffic, Salt, https://salt.security/api-security-trends? (last visited Mar. 2, 2022).

[3] Jaime Sardina, How Cyber Security is Changing the Way Lawyers Work, Lawahead, https://lawahead.ie.edu/how-cybersecurity-is-changing-the-way-lawyers-work/ (last visited Mar. 2, 2022).

[4] Salt, supra note 2.

[5] Id.

[6] Destructive Malware Targeting Organizations in Ukraine, CISA, https://www.cisa.gov/uscert/ncas/alerts/aa22-057a (Mar. 1, 2022).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] CISA, supra note 6.

[12] Id.

[13] Id.

By: Miriam Mokhemar

While most of us were taking finals or gathering with family over Winter Break, country leaders were meeting in Europe to discuss banning killer robots. 125 nation representatives and experts in the fields of artificial intelligence (AI), military strategy, weapons disarmament, and humanitarian law met in Geneva at the United Nations’ Convention on Certain Conventional Weapons. During the meeting on December 13-17, these leaders and experts wanted to introduce new legally binding mechanisms against killer robots that could be used as Lethal Autonomous Weapon Systems (LAWS) powered by AI.[1]

While many countries are still developing their LAWS, others are beginning to use these in battle today. In the ongoing civil war in Libya, reports suggested that a LAWS were used in the form of a drone. In March 2020, the Government of National Accord-the interim government of Libya- launched Turkish Kargu-2 drones “hunted down and remotely engaged” opposing military forces.[2] These drone LAWS were “programmed to attack targets without requiring data connectivity between the operator and the munition” creating a “‘fire, forget and find’ capability”.[3] Between these weapons and jamming devices from other warfare systems, the Libyan government decimated the operational capability of opposing forces.

Libya is just one example of a country using these new battlefield technologies as a significant force multiplier. The US has been testing drone LAWS by incorporating AI into L-39 Albatros jets at the Defense Advanced Research Projects Agency.[4]

LAWS using AI is attractive to state militaries because it new and not widely used by other militaries, removes the military personnel fatality risk, human emotions, and ethics by making decisions based on processing data and algorithms. Like any new technology, once it becomes mass produced and cheaper, it is even more attractive. However, the negatives that come with AI from bias data, such as targeting “friendlies”, attacking civilians, and enforcing gender and racial stereotypes, will be transferred into LAWS.[5] Furthermore, if nonstate actors acquire LAWS or AI technologies, they become substantially more threaten to the state-nonstate battles in conflicts.[6]

This has not stopped countries from advancing LAWs and blocking international legal procedures against such use. The United States, Australia, South Korea, India, Russia, Japan, and Israel have blocked any advancements in U.N. talks toward legally binding measures to ban and regulate the development and use of LAWS.[7] These countries in particular find that the military advantages of quicker reactions and reduced direct exposure of troops in battle outweighs the negatives of AI and potential harm from international regulations.[8] Other countries, such as Austria, Chile, Ireland and New Zealand, have been lobbying for legal binding rules.[9]

It is important to note that China, one of the United States’ important adversaries, was not against legally binding rules “based on an agreement to be reached on definitions”.[10] China even submitted a position paper on regulating military use of AI at the conference.[11] While the position paper uses strong rhetoric, it does not mention restricting the use of machines capable of choosing and engaging targets autonomously.[12]

Additionally, the position paper might suggest that China’s military use of AI may not necessarily focus on LAWS. Instead, China’s desires may be just to make miliary decisions faster.

According to Colonel Yuan-Chou Jing, former director of the Army Command Headquarters’ Intelligence Division and an associate professor at the Graduate Institute of China Military Affairs Studies, China would want to beat opposing forces based on “swiftness” and would mirror tactics similar to Hitler’s use of the Blitzkrieg during World War II.[13]  Colonel Jing asserts the advantage of Blitzkrieg tactics were that they effectively overwhelmed the enemy, especially when they had an unprepared infantry.[14] After every Blitzkrieg attack, the German infantry would move into the battlefield to suppress the last resistance from opposition forces, but it took time for armored tanks to move out of the battlefield.[15]

With AI, Blitzkrieg tactics could be faster and more decisive in acquiring targets and eliminating them, particularly when the initial attack is from a drone. It would also eliminate the need for troops to suppress the final opposition or make it easier for troops to intervene as the last stage of the Blitzkrieg-styled attack.

However, China’s position paper does not mention LAWS directly. Combined with other important security states objecting to international binding regulations against LAWS, the global community should have every reason to believe LAWS and killer robots are being developed and likely to be utilized in the future.

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[1] Sam Shead, “UN talks to ban ‘slaughterbots’ collapsed — here’s why that matters”, CNBC News (Dec. 22, 2021, 9:45 AM EST), https://www.cnbc.com/2021/12/22/un-talks-to-ban-slaughterbots-collapsed-heres-why-that-matters.html.

[2] Final report of the Panel of Experts on Libya established pursuant to Security Council resolution 1973 (2011), (March 8, 2021), https://undocs.org/S/2021/229; See Maria Cramer, “A.I. Drone May Have Acted on Its Own in Attacking Fighters, U.N. Says”, The New York Times (June 4, 2021), https://www.nytimes.com/2021/06/03/world/africa/libya-drone.html.

[3] Id.

[4] Sue Halpern, “The Rise of A.I. Fighter Pilots”, The New Yorker (Jan. 17, 2022), https://www.newyorker.com/magazine/2022/01/24/the-rise-of-ai-fighter-pilots.

[5] Sumana Bhattacharya, “TOP 10 MASSIVE FAILURES OF ARTIFICIAL INTELLIGENCE TILL DATE”, Analytics Insight (Sept. 15, 2021), https://www.analyticsinsight.net/top-10-massive-failures-of-artificial-intelligence-till-date/.

[6] Sarah Kreps, “Democratizing Harm: Artificial Intelligence in the Hands of Nonstate Actors”, The Brookings Institute, 2, November 2021, https://www.brookings.edu/wp-content/uploads/2021/11/FP_20211122_ai_nonstate_actors_kreps.pdf.

[7] “Japan, U.S. block advancement in U.N. talks on autonomous weapons”, Kyodo News (Dec. 20, 2021), https://english.kyodonews.net/news/2021/12/c086de7578e9-japan-us-block-advancement-in-un-talks-on-autonomous-weapons.html.

[8] Id.

[9] Id.

[10] Id.

[11] Permanent Mission of the People’s Republic of China to the United Nations Office at Geneva and Other International Organizations in Switzerland “Position Paper of the People’s Republic of China on Regulating Military Applications of Artificial Intelligence (AI)”, United Nations (Dec. 13, 2021, 13:00 CET) http://www.china-un.ch/eng/dbdt/202112/t20211213_10467517.htm.

[12] Id.

[13] Yuan-Chou Jing, “How Does China Aim to Use AI in Warfare?”, The Diplomat (Dec. 28, 2021), https://thediplomat.com/2021/12/how-does-china-aim-to-use-ai-in-warfare/.

[14] Id.

[15] “The German ‘Lightning War’ Strategy Of The Second World War”, Imperial War Museums (2022), https://www.iwm.org.uk/history/the-german-lightning-war-strategy-of-the-second-world-war.

By: Autumn Burgin

            Recently in January 2022, the Copyright Office released its new 2022-2026 Strategic Plan for the upcoming years. The Office recognizes that in today’s world, copyright has become more relevant to the public, including those who may not have the access to the expertise or resources as professionals do. To adapt, the Copyright Office is aiming to “expand its outreach and education programs to grow awareness of copyright and all its benefits”.[1] Their new strategic plan lays out how they plan to accomplish this over the next four years. The Copyright Office expresses that the key focus of the new strategy is to ensure that copyright is accessible to all, welcome diversity and enrich cultural landscape.[2] Furthermore the Office has four goals they want achieve: copyright for all, continuous development, impartial expertise, and enhanced use of data.[3] The plan goes into further depth on just how they propose to meet these goals.

            The first goal surrounds allowing copyright access to all. The intention is to make the copyright system as understandable and accessible to as much of the public as possible. This includes individuals, small entities, and historically underserved communities.[4] Currently, the Copyright Office conducts outreach activities including the creation of circulars, FAQ’s, videos and answering questions from the public.[5] Moving forward the Copyright Office will try to make the law and its services more understandable. To do this they will do further research on how their system is used and who uses it. Their new Enterprise Copyright System (ECS) will help this goal by making services easier to use. The ECS integrates and updates the Office’s services including, but not limited to, a redesigned and easier to use registration system, an electronic recordation process system, and new tools to streamline the Office’s review of licensing agreements.[6] The Copyright Claims Board (CCB) will also provide a forum for resolving small claims to make justice more accessible.[7]

            The second goal, “continuous development”, is currently served by the Office’s new modernization initiative and the ECS. They are currently trying to make all services digitized, interconnected, searchable and easy to navigate. Progressing towards the future the Copyright Office intends to continue to develop their modernization process while identifying opportunities presented by emerging technologies to expand services.[8]

            The third goal involves “impartial expertise”.[9] The Copyright Office currently prides itself on being an impartial expertise in copyright law, policy, and practice. The Office serves as the principal advisor to Congress on national and international copyright issues as well as it works on a variety of copyright matters with courts and executive agencies.[10] The Copyright Office will further this impartial expertise by remaining up-to-date and dedicated to the development of copyright law through rulemakings and studies. They will also try to continue their duties internationally by participating policy discussions and the provision of education.[11]

            The fourth goal deals with the “enhanced use of data”.[12] Currently, while offering services the Copyright Office also collects various types of copyright-related information. They also collect other data related to operations performance and web metrics which is used to inform policies and measure performance.[13] The Office is looking to improve the development and use of data while making it more accessible to internal and external audiences. This will allow them to determine how to shape policies, set budgets and feeds, as well as provide resources to the public more effectively.[14]

            While this new strategic plan is in its very early stages, how the Copyright Office will follow through on their promises is something worth taking note of. Some are already scrutinizing this new plan, suggesting that the copyright office could take other steps to achieve the same outcome such as making registering copyrights optional instead of mandatory.[15] Either way, it seems the Copyright Office has some high expectations for itself, and the hopeful outcome is something worth supporting.

                                                                                                By: Autumn Burgin

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[1] United States Copyright Office Strategic Plan 2022-2026: Fostering Creativity & Enriching Culture, u.s. copy. office, https://copyright.gov/reports/strategic-plan/USCO-strategic2022-2026.pdf (last visited Jan. 28, 2022).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Strategic Plan 2022-2026, supra note 1.  

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Strategic Plan 2022-2026, supra note 1.

[12]Id.

[13] Id.

[14] Id.

[15] Tiffany Hu, Copyright Office Aims to Make IP System That Works “For All”, law 360, (Jan. 20, 2022, 9:20 PM), https://www.law360.com/articles/1457337.

By: Marisol Estrada Cruz

If you have yet to learn about the metaverse, you are not alone. This virtual-reality world expansion is slowly but surely becoming more popular as the world shifts to increased virtual interactions as a result of the COVID-19 pandemic.

The metaverse is an immersive, next-generation version of the internet where, with the help of special headsets you can “walk” around a virtual world using an avatar.[1] This concept is brought together by an interconnection of virtual reality and augmented reality worlds enabled through the development of Web3 technologies.[2]

Matthew Ball, a metaverse expert describes the metaverse as, “[A] massively scaled and interoperable network of real-time rendered 3D virtual worlds which can be experienced synchronously and persistently by an effectively unlimited number of users with an individual sense of presence, and with continuity of data, such as identity, history, entitlements, objects, communications, and payments.”[3]

Although this concept is new to me and to many of you reading this, the idea of a metaverse is traced to Neal Stephenson’s 1992 dystopic novel, Snow Crash.[4] Now, 30 years later, millions of people spend hours a day in virtual spaces.[5]

Technology companies like Facebook, Apple, Microsoft, and Google are all jumping on board the metaverse train and they are envisioning a multi-platform virtual world where people can come together and share virtual space. [6]

With metaverse serving as an extension of the internet as we know it, and with these giant tech companies involved – we can only imagine the legal implications the metaverse will bring.

The current state of the internet currently presents legal issues pertaining to data rights, data security, trademarks, copyright, and misinformation. With the emergence of the metaverse, these legal issues will continue to expand, and new ones will arise.

An example of trademark law implications in the metaverse comes from Nike Inc. where the company filed seven different trademark applications to use its marks to sell virtual goods in the metaverse.[7] Nike indicated that it intends to make and sell virtual branded sneakers and apparel.[8]

Another issue will be intellectual property ownership. The U.S. District Court for the Eastern District of Virginia, in a recent case involving artificial intelligence, held that an AI system cannot be named an inventor on a patent.[9] The Compendium of U.S. Copyright Office Practices, a manual produced by the U.S. Copyright Office, intended for use primarily by the Copyright Office staff as a general guide to policies and procedures states that the term “authorship” implies that, for a work to be copyrightable, it must owe its origin to a human being.[10] Materials produced solely by nature, by plants, or by animals are not copyrightable.[11] The metaverse could have virtual creations by avatars and AI aspects built into them. If such innovations are deemed AI creations and not human creations, they may not be allowed certain types of intellectual property protection.

Data security and privacy concerns already pose a problem in today’s internet-age. The metaverse will bring more opportunities for big tech companies to collect user data and this data will become extraordinarily valuable to companies. The application of privacy laws in the metaverse will be challenging to navigate and regulate because every person’s experience can and will be transferable across platforms and environments. [12]

Despite the legal concerns and challenges the metaverse may bring, one can only hope benefits will also arise from this new virtual world.

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[1] Scott Nover, The meaning of the ‘metaverse,’ and all the terms you need to understand it, QUARTZ (Nov. 15, 2021), https://qz.com/2089665/everything-you-need-to-know-to-understand-the-metaverse/.

[2] Megan Baca, Raffi Teperdjian, and Kelley Chandler, Opportunities and Legal Implication In The Metaverse, Law 360 (Jan. 7, 2022), https://plus.lexis.com/api/permalink/eed38b3c-7f79-4016-9946-987601e155e7/?context=1530671.

[3] Matthew Ball, Framework for the Metaverse, MatthewBall (Jun. 29, 2021), https://www.matthewball.vc/all/forwardtothemetaverseprimer.

[4] Peter Allen Clark, The Metaverse Has Already Arrived. Here’s What That Actually Means, TIME (Nov. 15, 2021), https://time.com/6116826/what-is-the-metaverse/.

[5] Id.

[6] Rahul Kapoor and Shokoh Yaghoubi, A Brief Overview of the Metaverse and the Legal Challenges It Will Present, JDSUPRA (Oct. 31, 2021), https://www.jdsupra.com/legalnews/a-brief-overview-of-the-metaverse-and-9541020/.

[7] Jessica Golden, Nike is quietly preparing for the metaverse, CNBC (Nov. 2, 2021), https://www.cnbc.com/2021/11/02/nike-is-quietly-preparing-for-the-metaverse-.html.

[8] Id.

[9] Thaler v. Hirshfeld , No. 1:20-cv-903 (LMB/TCB), 2021 U.S. Dist. LEXIS 167393 (E.D. Va. Sep. 2, 2021)

[10] The Compendium of U.S. Copyright Practices § 306 (2017), https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf

[11] Id. at § 311.1.

[12] Supra note 2.

By Cecily Capo

On October 28, 2021, the U.S. Copyright Office adopted exemptions to provisions in the Digital Millennium Copyright Act (DMCA) which will allow for technological protection measures (TMPs) to be bypassed if certain conditions are met.[1] The DMCA was enacted in 1998 to implement two World Intellectual Property Organization (WIPO) treaties and address various copyright-related issues.[2] The provision at issue, title 1, prohibited the “circumvention of technological measures employed by or on behalf of copyright owners”.[3] These measures were put in place to ensure that only the copyright owner could make alterations to the copyright-eligible features of their product, such as software.[4] However, under this new ruling, the restriction will not apply to those who use a copyrighted work for non-infringing purposes for three years.[5]

Prior to this ruling, if a copyright owner licensed its product to a third party and the third party circumvented a technological measure in some way without the owner’s permission, the third party would be found to have infringed the owner’s copyright.[6] Since software is often protected by copyright, any alteration to it could be seen as an infringement.[7] As a result, the right to repair movement spread across the country.[8] Many have argued that if they are prohibited from altering a product’s software, they are unable to make repairs to it, and thus they are at the mercy of the manufacturer.[9] For example, a farmer who purchases a new tractor equipped with an electronic feature would often be without the legal right to make repairs, since certain repairs would be seen as circumventing a technological measure without the owner’s permission.[10] The U.S. Copyright Office’s ruling remedies this concern by giving purchasers three years to circumvent the product’s technological measures for non-infringing uses without fear of recourse by the copyright owner.[11]

There has been some concern regarding how this ruling will affect the security of medical devices. Peter Pitts, President of the Center for Medicine in the Public Interest, opined that this ruling will open the door to anyone hacking into secure medical devices and claiming it is for purposes of repair, calling it an “open season” for medical device hacking.[12] Pitts said that the unintended consequence of this ruling is that a once hard to track illegal activity becomes a hard to track legal activity and puts patient safety and security at risk.[13] However, this exemption will only be granted if one can show that their ability to make non-infringing uses of their copyrighted work will be adversely affected by the safeguards put in place by the DMCA.[14]

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[1] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).

[8] Ron Lyseng, U.S. Farmers Fight for Right to Repair, The Western Producer (Mar. 8, 2013), https://www.producer.com/crops/u-s-farmers-fight-right-repair/.

[9] Id.

[10] Id.

[11] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).

[12] Peter J. Pitts, Right-to-Repair: Building Back Worse, IP Watchdog (Jan. 6, 2022), https://www.ipwatchdog.com/2022/01/06/right-repair-building-back-worse/id=142476/.

[13] Id.

[14] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).

By: Christopher Henley

Back in 2011, a largely bi-partisan Congress passed the “America Invents Act,” (AIA) a pivotal piece of legislation that completely overhauled the patenting process.^[1] Prior to the passing of the Act, patent practitioners sought a means of exercising patent review that was not left entirely to the discretion of the Director of the United States Patent and Trademark Office (USPTO) or the district court. Thus, under the AIA, the Patent Trials and Appeals Board (PTAB) was created. In the past 10 years, however, the PTAB has been under fire, being hailed by some as a “means for big tech companies to steamroll small inventors,” and the body of law responsible for stifling innovation and devaluing US patents.^[2] After a recent pivotal Supreme Court Decision, both political parties have offered their ideas to drastically change the law body, each addressing the issue from different perspectives.

The PTAB is an administrative law body within the USPTO whose sole focus is to determine issues of patentability.^[3] These issues are presented to the court in the form of examination appeals, inter partes review, covered business method review, derivation proceedings, and Post Grant Review.^[4] The court itself is made up of statutory members, such as the Director of the USPTO, and administrative patent judges (APJs) who are appointed by the Secretary of Commerce.^[5] Each APJ is required to be “persons of competent legal knowledge and scientific ability” and sufficiently qualified to be of skill in a technical field.^[6]

Proceedings in the PTAB are remarkably similar to those in an Article III court, such that proceedings are initiated by a petition and preliminary response, trials are conducted, and final written decisions are issued. Despite the law body’s statutory support, the authority of the PTAB was challenged this past summer at the Supreme Court in United States v. Arthrex. In a majority opinion written by Justice Roberts, the Court held that the exercise of power held by the PTAB must be at some level, subject to the discretion of the Director of the USPTO, an un-elected officer nominated by the President.^[7] While Arthrex does on some level address the PTAB’s unchecked authority, the majority opinion avoids the discussion of whether or not the court is unconstitutional as a whole. Instead, it gives a signal to practitioners who want the PTAB to be reformed that they are unlikely to find that relief from the Supreme Court. 

In addition to the constitutional challenges, the PTAB has been widely criticized for its institution of inter partes review (IPR). IPR is a proceeding instituted post grant of a patent, wherein a third party can challenge the validity of a patent under either a novelty or non-obviousness claim.^[8] To file an IPR, a third party must pay at minimum $19,000 and submit prior art that they believe renders the granted patent, or a portion of the patent, invalid.^[9] IPR proceedings have long been abused by large corporations who are capable of paying the initial filing fee and keeping patent holders in limbo. Some even believe that IPR proceedings are partially responsible for the devaluing of the US patent.^[10]

To resolve some of the issues posed by the PTAB, each party in Congress has introduced a bill post-Arthrex to address the failing US patent system. First, Senator Leahy (D-VT) introduced the “Restoring the American Invents Act” bill in September that aims to expand the PTAB’s jurisdiction to include obviousness-type double patenting, codify the Arthrex decision, and strongly encourage district court stays pending PTAB review among other things.^[11] Senator Leahy in his bill is sending a signal that the PTAB is here to stay, and that its authority should be expanded.  According to some, the bill would reinforce high-quality patents by eliminating low-quality patents in PTAB review while also incentivizing patent owners to draft high quality patents, thus increasing their chance of surviving a PTAB challenge.^[12]The bill, of note, has had an mixed initial response and has been popular among some tech companies.^[13]

Conversely, House Representative Thomas Massie (R-KY) introduced a bill on November 4^th, 2021 titled “Restoring America’s Leadership in Innovation Act of 2021” that proposes to eliminate the PTAB as well as IPR.^[14]With this proposal, Republicans in the House are taking a strong stance against the AIA and the PTAB, proposing a complete overhaul of the patent system. Representative Massie, an MIT grad, has been on the record saying that the AIA and the Supreme Court have eroded the “strength and value” of the US patent.^[15]

The role of the PTAB remains to be a point of partisan debate. While both parties acknowledge that reform in the patent system must happen, neither proposal appears to have the same amount of support as the original AIA bill when it passed over 10 years ago. As for now, both proposed bills are in their infant stage and show no sign of progressing through Congress. Both parties will continue to maintain that the law body is flawed, but until there is a resolution, the PTAB will continue to be a vestige of the USPTO that is here to stay, at least for now.

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^[1] See Leahy-Smith America Invents Act, H.R. 1249, 112^th Cong.

^[2] Jeff John Roberts, Apple Tried to Kill More Patents Than Anyone Else, By Far, Fortune (Jan. 21, 2016),https://fortune.com/2016/01/21/apple-ptab/.

^[3] Janet Gongola, The Patent Trial and Appeal Board: Who are they and what do they do? United States Patent and Trademark Office, https://www.uspto.gov/learning-and-resources/newsletter/inventors-eye/patent-trial-and-appeal-board-who-are-they-and-what.

^[4] Id.

^[5] Id.

^[6] Id.

^[7] United States v. Arthrex, Inc., 141 S. Ct. 273, 288 1970 (2021).

 

^[8] 37 C.F.R.  § 42.104 (2021).

^[9] See USPTO Fee Schedule (Last visited Nov. 15, 2021) https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule.

^[10]Gene Quinn, A kinder, Gentler “Death Squad”: Ten Years in, Despite Some Reforms, the USPTO is Still Killing U.S. Patents, IP Watchdog (September 19, 2021) https://www.ipwatchdog.com/2021/09/19/kinder-gentler-death-squad-ten-years-despite-reforms-uspto-still-killing-u-s-patents/id=137765/.

^[11] Restoring the America Invents Act, S. 2891, 117^th Cong. (2021).

^[12] David Cochran and Zach Sharb, Legislation: Restoring the America Invents Act, JDSupra (October 6, 2021). 

^[13] Id.

^[14] Restoring America’s Leadership in Innovation Act, H.R. 5847, 117^th Cong. (2021).

^[15] Gene Quinn, Massie Introduces Bill to Repeal PTAB, Abrogate Alice, IP Watchdog (November 9, 2021) https://www.ipwatchdog.com/2021/11/09/massie-introduces-bill-repeal-ptab-abrogate-alice/id=139758/.

By: Sam Schimel

Gestational surrogacy legality in New York state is what is needed to combat the immediate concern of declining birth rates. The Child Parent Security Act (CPSA) was introduced in 2020 to legalize gestational surrogacy which has been illegal for a large amount of time. A gestational surrogate is when a surrogate gestates a fetus, formed from an embryo using an oocyte from either the intended mother or an oocyte donor (which is combined with the sperm from either the intended father or a sperm donor.^[1] This type of surrogacy differs from traditional surrogacy, an agreement where surrogate also donates the oocyte.^[2] Gestational surrogacy is more often seen as less controversial than traditional, and the majority of states have legalized it. 

Gestational surrogacy has had a long an arduous journey to legality in New York State beginning with the landmark New Jersey Case, aptly named the Baby M Case. The case concluded that the full surrogacy contract in question was not permitted by New Jersey law. ^[3] The case was controversial because the surrogate, whose own genetic material was used in a traditional surrogacy, decided that she didn’t want to follow the contract and wished to keep the baby instead.^[4] This case had such a profound effect, that it was not until this year that the Child Parent Security Act has been signed into law. ^[5]

There have been several recent controversies surrounding women’s reproductive health that have not helped the declining birth rate currently plaguing the U.S. From the Texas abortion law to cryopreserved embryo storage spaces malfunctioning resulting in the loss of dozens of frozen embryos.^[6] This sort of news is a light at the end of a currently dark tunnel. The CPSA allows for relaxed surrogacy eligibility and calls for reasonable compensation.^[7] This overhaul for New York State surrogacy legislation could not have come at a better time than when the overall birth rate in the United States has been significantly lowered by the pandemic-related financial stresses facing many Americans.^[8] The fact that this legislation was introduced at the same time as this decline in birth rate seems too strong of a correlation to be coincidental. But in any case, it could help bring the U.S. back on its footing and also make up for the current upsets in women’s reproductive health. 

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^[1] Kate Swanson Et Al., Understanding gestational surrogacy in the United States: a primer for obstetricians and gynecologists, Ajog, April 2020, https://www.sciencedirect.com/science/article/pii/S0002937820300582.

^[2] Id.

^[3] In re Baby M, 537 A.2d 1227, 1264 (1987).

^[4] Elizabeth Chuck, New York state, long a holdout against legalizing surrogacy, overturns ban, Nbc news (Apr. 3, 2020, 3:04 PM), https://www.nbcnews.com/news/us-news/new-york-state-long-holdout-against-legalizing-surrogacy-overturns-ban-n1176071.

^[5] Id.

^[6] Gerard Letterie & Dov Fox, Lawsuit frequency and claims basis over lost, damaged, and destroyed frozen embryos over a 10-year period, 79 Seattle Reproductive Medicine, Seattle, Washington; and School of Law, Center for Health Law and Policy and Bioethics, University of San Diego, San Diego, California (2020).

^[7] Joseph Williams, New Surrogacy Law Brings Opportunities but Practitioners Beware, N.y.s. Bar Ass’n,, (Mar. 9, 2021), https://nysba.org/new-surrogacy-law-brings-opportunities-but-practitioners-beware/. 

^[8] Sabrina Tavernise, The U.S. Birthrate Has Dropped Again. The Pandemic May Be Accelerating the Decline, N.Y. Times (May 5, 2021), https://www.nytimes.com/2021/05/05/us/us-birthrate-falls-covid.html. 

By: Stephan Surman

September 1, 2020 marks the publication of the 21st edition of The Bluebook. ^[1] Weighing in at just 16 ounces (365 pages), the latest edition is a wraith of its former self, having shed over 195 pages and 7 ounces of dead weight. ^[2]Unfortunately, nearly 9 ounces of dead weight remain.

Ostensibly, legal citations are important for two reasons. First, citations identify the document or other source material to which the writer is referring, ideally making it easy for the reader to locate the source material for further review.^[3]Second, citations help the reader distinguish between new and unique ideas, and those borrowing from the ideas of others. The two most often used systems of citation in the United States are The Bluebook and the ALWD Guide to Legal Citation^[4], however The Bluebook is taught at most US law schools and employed by most federal courts.^[5]

Unfortunately, in contrast to haircare, the rules of the Bluebook are anything but simple and finite, and thousands of law students fritter away countless hours with their noses buried deep within its pages. Ilya Somin, Professor of Law at George Mason University School of Law, agrees The Bluebook is a waste of time and effort, arguing:

Every year, law review editors across the country spend thousands of man-hours editing articles to make sure that they conform to the Blue Book rules, taking Blue Book tests, and engaging in other Blue Book-related activities…. This time could easily be spent in more productive ways, such as studying, research, clinical work, or even working on your tan at the beach.^[6]

I don’t tan. I fry like the Colonel’s chicken, but I was required to take a citation exam based on The Bluebook to earn a position on Syracuse University’s Journal of Science and Technology. Though my experience on the journal has been fantastic, the exam was too long and entirely unnecessary, and I’m certain my performance almost no impact on my acceptance to the journal. And, I’m not the only student who feels this way.^[7]

In his article, Beyond The Bluebook: Teaching First-year Law Students What They Need to Know About Legal Citation, Peter Nemerovski, Professor of Legal Writing at The University of North Carolina Law School, cites (pun unintended) several theories as to why The Bluebook remains central to legal education today. First, The Bluebook has been taught and used within the legal profession for nearly 100 years.^[8][9] Second, uniformity in citations is important and a single standard helps drive uniformity.^[10] Third, compliance with a standard is an indicator of quality and professionalism.^[11] Fourth, the longevity of The Bluebook can be attributed to pride and greed.^[12] And fifth, study of The Bluebook requires a process of reasoning analogous to the study of law.^[13]

Vinny Gambini and Mona Lisa Vito would agree none of these arguments hold water. Regardless, each of these arguments is purely academic when considering the purpose of legal citations. A centuries old, highly complex, and debatably uniform system of citations provides no benefit toward the identification and location of source material when Google is a click away. Like the pyramids of Egypt, the Bluebook is both antiquated and excessive.^[14] It’s no surprise noted jurist and former circuit court judge for the United States Court of Appeals for the Seventh Circuit called for The Bluebook to be burned.^[15] Computerized search technology has rendered The Bloatbook entirely unnecessary.

An adaptation of Posner’s standard of citation was used for the references contained in this blog post.^[16] Though Posner’s theories of economics are questionable, his alternative method of citation is exactly what the legal profession needs.

If you can’t find it Google it; I will be outside trying to catch a tan.

---

^[1] Amazon’s Bluebook product listing, https://www.amazon.com/Bluebook-Uniform-System-Citation-21st/dp/0578666154/ (visited April 26, 2021)

^[2] Amazon’s Bluebook product listing, https://www.amazon.com/Bluebook-Uniform-System-Citation-21st/dp/0578666154/ (visited April 26, 2021)

^[3] Peter W. Martin, Introduction to Basic Legal Citation, https://www.cali.org/sites/default/files/basic_legal_citation_1.pdf (visited April 26, 2021)

^[4] Legal Citation, https://iupui.libguides.com/legalcitation (visited April 26, 2021)

^[5] Wikipedia entry on Bluebook, https://en.wikipedia.org/wiki/Bluebook (visited April 26, 2021)

^[6] Ilya Somin, “The Case for Abolishing The Bluebook”, The Volokh Conspiracy, May 19, 2010, http://volokh.com/2010/05/19/31605/

^[7] Staci Zaretsky, “Law Student’s Revolt Against Law Review’s Bluebook Exam”, Above the Law, March 22, 2012, https://abovethelaw.com/2012/03/law-student-revolts-against-law-reviews-bluebook-exam/

^[8] Peter Nemerovski, “Beyond The Bluebook: Teaching First-year Law Students What They Need to Know About Legal Citation”, Arizona L. Rev. 56:4, 84 (2014)

^[9] Shapiro and Krishnaswami, “The Secret History of The Bluebook”, Minn. L. Rev. 100, 1563 (2016)

^[10] Nemerovski at 85

^[11] Nemerovski at 86

^[12] Nemerovski at 87

^[13] Nemerovski at 89

^[14] Richard A. Posner, “The Bluebook Blues”, Yale L. Journal 120, 851 (2010)

^[15] Debra Cassens Weiss, “Posner says Bluebook is ‘560 pages of rubbish,’ suggests changes to improve jury trials”, ABA Journal, March 29, 2016, https://www.abajournal.com/news/article/want_to_even_out_lawyer_quality_and_end_contingent_fees_adopt_a_uniform_pay

^[16] Posner at 854