As an antitrust and intellectual property expert and scholar, you field calls almost daily from reporters covering a range of news stories in these fields. Why is this issue such a force in public debate?
Three reasons: 1. Rapidly-changing technologies (and laws scrambling to catch up); 2. Valuable markets worth billions; 3. Direct effect on consumers (e.g., prescription drugs, smartphones).
One major case in which you were quoted regularly was Apple v. Samsung. What was the question of the case and what is the impact of this decision on the general public?
The question: Did Samsung infringe Apple’s patents on technologies like slide-to-unlock and the shape of the phone? The impact: If Samsung infringed, the court could block its phones from the market. The International Trade Commission issued just such an order that would have blocked Apple’s iPhones from entering the country, but was overturned by the White House.
Most recently you’ve fielded queries from major news outlets on the O’Bannon class-action lawsuit against the NCAA. Why has this case dominated headlines and what implications would this decision have on college athletes?
College athletics is big business. The NCAA has had free rein to engage in collusive activity that would otherwise violate the antitrust laws by relying on a defense that its rules are needed to promote amateurism. This case threatens to blow the lid off this defense. Is the NCAA really offering amateur sports when student athletes devote 40-60 hours per week to sports and frequently cluster in certain majors and dorms? A win by the plaintiffs would allow players to get paid. In this case, they would receive money when their name, image, or likeness appears on merchandise or TV. In the future, they could get even more.
You clearly aren’t just talking with media, in addition to teaching and your scholarly pursuits, you are also filing amicus briefs with courts on behalf of professors each year. Why is this of value to you as a legal scholar and why is independent testimony vital to our legal system?
At a time when law schools are under increasing pressure to be relevant, I feel an obligation to share my scholarship and expertise with courts that find themselves confronted with complicated issues. One of the most complex issues is presented when brand-name drug companies pay generics to delay entering the market. This costs consumers billions of dollars each year and threatens real health effects for patients who are not able to afford prescription drugs.
For most of the past decade, courts upheld these agreements, claiming that settlements were good and patents were valid. I disagreed, and co-authored an amicus brief in the Supreme Court on behalf of 118 professors that Justice Breyer cited in holding that these settlements could violate the antitrust laws. Several important questions remain unanswered, and in the past few months, I have filed briefs on behalf of more than 100 professors in the Third Circuit and California Supreme Court on follow-on issues.
What antitrust and intellectual property cases on the horizon do you anticipate fielding related media calls?
All of the above and then some! In the past few years, the issues have multiplied: the smartphone patent wars; patent trolls; the patent system in general; disruptive innovation (Aereo, Airbnb, Tesla, Uber). There is a lot at stake. And the issues are only getting more complex.