Online Exclusives

Insights Plentiful at IP Summit

The fourth annual International Intellectual Property (IP) Summit brought together experts from a variety of fields in October for three days of panel and roundtable discussions. The topics included balancing drug development and distribution, global cybersecurity and privacy, leading through prolonged uncertainty, and updates on IP and antitrust law in jurisdictions around the world.

The annual event, which is co-sponsored by BC Law’s Program on Innovation and Entrepreneurship (PIE) and the law firm Ropes & Gray LLP, has attracted scores of experts every year since its inception. The 2021 virtual summit included 29 speakers and nearly 200 attendees from a host of companies, universities, research institutes, and law firms.

In her opening remarks, Interim Dean Diane Ring discussed the mission behind PIE—launched in 2017—as well as the reason for hosting the International IP Summit. “Our goal was to bring together scholars, lawyers, businesspersons, government officials, judges, innovators, and entrepreneurs to consider important issues in innovation and entrepreneurship… and to think about these issues in a global context,” she said.

“There have been very few times in history where the importance of innovation has been more evident,” Ring continued. “IP Law has always had to strike a balance between encouraging innovation and facilitating equitable distribution. I am very pleased to see that this summit is going to tackle this tension directly.”

Speakers on the “IP Rights, Vaccines, and Drug Development” panel talked through issues with drug development and distribution and how the current pandemic has shed light on the possibility of an improved system.

Panelist and Harvard Law Professor Ruth Okediji said the groundbreaking speed at which the Covid-19 vaccines were developed has raised questions about the role of IP in the creation and distribution of drugs. “IP rights should not become a barrier when dealing with the manufacture, supply, and development of all medical products,” Okediji noted. “This is not just about vaccines, it’s about all medical products.”

Okediji and moderator Anita Varma, a partner at White & Case LLP, discussed the Biden Administration’s support for the World Trade Organization IP Waiver, which would waive intellectual property protections for Covid-19 vaccines. Okediji explained that the original request for the waiver was submitted to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council by South Africa and India on October 2, 2020, as a response to the need for expedited vaccine development and distribution.

“The waiver is directed at governments to suspend the obligation that countries have to guarantee a minimum level of protection for all kinds of intellectual property rights,” said Okediji. “They argue that such a waiver should continue until we have reached some saturation point for the availability of vaccines.”

Varma pointed out that many opponents of such a waiver hail from the pharmaceutical and biotech industry. She shared information about the sizable investments that drug companies make in research and development, as well as the long and expensive process of conducting clinical trials before drugs are finally approved by the Food and Drug Administration for patients. She noted the drug companies’ concerns about how future innovation will be funded if IP waivers are used freely, suggesting that overcoming drug companies’ resistance is a significant hurdle for proponents of IP waivers for vaccines and other drugs.

While a number of speakers believed that changes are on the horizon, they said it will take time to establish a new infrastructure for developing life-saving medicine. As panelist Julie Barnes-Weise, executive director of the Global Healthcare Innovation Alliance Accelerator, put it: “There is no one answer to all of this. Addressing these challenges is going to take a portfolio of solutions.”

Introducing the “Leading and Thriving through Prolonged Uncertainty: A Conversation with General Counsels” panel, Ed Kelly, retired partner at Ropes & Gray LLP and co-chair of the summit, observed that now is a remarkable time for small companies because of how quickly they can grow. “Problems like corporate liability, intellectual property—all kinds of issues pop up,” Kelly said. “The role of general counsel is to guide them through this.”

Regina Sam Penti, partner at Ropes & Gray LLP and co-chair of the summit, moderated the panel and asked the panelists about their experiences protecting and guiding their companies. The panelists uniformly agreed that this has been no easy feat, especially during the Covid-19 pandemic. “The first word that comes to mind is chaotic. Everything in the world turned upside down and then it turned upside down over and over again,” said Jim DeGraw, general counsel and secretary and chief administrative officer for Volta Inc. He also called the past 18 months the “most interesting” of his career.

Jason P. Fiorillo, chief legal officer at Boston Dynamics, echoed DeGraw’s comments, but substituted “challenging” for “interesting.” He explained that Boston Dynamics has been a rapidly growing company that in 2020-2021 went through a massive transaction in which Hyundai Motor Group acquired 80 percent of Boston Dynamics’ capital stock. “It was a really exciting—kind of rambunctious—time, and it felt sort of like a war-time effort where we all had to pitch in together to overcome the challenges thrown our way,” he said.

Butterfly Network’s general counsel and corporate secretary, Mary Miller, said her relationship and communication with her company’s board of directors were key factors in her ability to weather the storm of the current health crisis and continue providing medical imaging products. In addition to the challenges of continuing to ship products and support customers, Miller said that many of her concerns were people-centric, including uncertainty around returning to the office, vaccine mandates, and mental health issues. “Attrition, attraction of talent, and motivating employees” also had to be dealt with, she said.

The panelists went on to discuss the importance of diversity within a company. They touched on the benefits of diverse backgrounds and cultural experiences serving as tools for innovation and improved collaboration within a company and in society as a whole. DeGraw said diversity of thought is crucial to a company’s ability to disrupt the way people approach particular business issues.

Among the other summit discussions was “Antitrust Law, Platforms, and IP.” BC Law Professor David Olson, faculty director of PIE and co-chair of the summit, began his moderation of the by describing the evolution of antitrust law.

He explained that early antitrust jurisprudence evinced varied concerns about big businesses. Louis Brandeis (later Supreme Court justice) was an early antitrust activist, urging aggressive enforcement to prevent collusion, protect small businesses, and prevent the accumulation of political power by corporations.

Olson explained that courts adopted the pursuit of multiple antitrust goals for much of the Twentieth Century. Starting in the 1960s, however, scholars at the University of Chicago launched a sustained critique of antitrust law, arguing that trying to pursue multiple, conflicting goals in antitrust led to no clear, predictable outcomes, but instead left a judge merely to impose his or her preference. The “Chicago School” urged a focus on the single antitrust goal of “consumer welfare,” meaning that antitrust violations should only be found for actions that cause higher prices, worse products, or less innovation for consumers.

This critique was effective such that courts accepted consumer welfare as the single goal of antitrust law. Olson explained that this consensus is now under attack from some who have adopted the label of “neo-Brandeisians.” They argue that antitrust law should go back to its early days of focusing on protecting small competitors, preventing the growth of large companies, and regulating business activities.

The panelists discussed antitrust enforcement under the Biden administration, noting that President Biden’s appointments and nominees to the enforcement agencies include “neo-Brandeisians” and thus signal an interest in increased antitrust enforcement, including as it relates to vertical mergers, M&A, and online platforms such as Amazon, Facebook, and Google.

The panelists noted that the Trump and Biden administrations actually had a lot in common on antitrust enforcement, especially concerning large platforms, even if for different reasons. The panel discussed pending legislation that would restrict platform activity and intensify merger review. It was agreed that it is too soon to tell whether the proposed legislation will become law and whether the Biden administration’s antitrust focus will affect deal flow and business activity.

Some panelists said that they are watching for antitrust enforcement against alleged “killer acquisitions” that protect market share and prevent disruptive competition, as well as antitrust treatment of agreements to license standard essential patents under “fair, reasonable, and nondiscrminatory” (“FRAND”) terms.

The summit concluded with an invitation-only roundtable session facilitated by Beibei Sun, senior corporate counsel at Sanofi. In this session, experts in their fields further discussed the issues raised in the first two days of the summit and brainstormed best practices in changing times for those engaged in international IP and business.

When asked about the summit, Olson said, “It was a privilege to be part of another successful summit, which always provides a rich conversation by bringing together experts from so many different institutions. I look forward to an even bigger and better Fifth Annual Summit next October, when we can all gather in person again.”

View the program and videos here.

Pictured above, clockwise from top left: Panelists Beibei Sun, Maria Calvet, Kevin Mahoney, Elaine Wu, David Olson, and Ndubisi Ekekwe

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