Second Tier IPR CP - Michigan 7 2024 BFHR

Sub-patentable/Rights PICs – BFHR
Both of these counterplans are essentially exclusive rights PICs. There is some ability to adjust the CPs depending on which aff you are debating. Adding a plank to ban IP is possible, but not necessary given the Net Benefits. There is overlap in the aff answer section as both of these CPs fall into the “second-tier patents” category, which is an entire body of literature described as a type of Sui Generis. There a TON of different versions of these cps as many countries have versions of second-tier IPR structures, even though they don’t exist in the U.S. They are referred to by many names such as petty patents, utility models, short-term patents, innovation patents. They are generally used for a smaller set of technologies and are of a shorter duration. Additional note, some second-tier rights still offer the protection of an EXCUSIVE right --- that is not how these two cps work – it is worth taking a look at each of these cps to understand why that means access to the public domain and improvement/protection of the public domain is a net benefit to these cps. The cps we have included in this file are a little different, but accomplish the same goal. There are explanations of each of the cps in their sections of the file.
Excellent work from Reagan and Michael on these CPs. There is a lot of potential to expand on some of the ideas and add additional “exclusive rights bad” net benefits as well. We only had time to scratch the surface.
Anti-Patents
Notes
This counterplan provides an option for startup businesses to opt out of the patent system, by creating a qualified immunity standard which would make their inventions unpatentable but would grant them permissionless innovation privileges for 20 years---so they’re immune to infringement suits from other firms, which allows them to freely experiment in follow-on innovation endeavors. After this 20-year term, their work is passed to the public domain, which acts as one net benefit to the counterplan. The second would just be ‘patents bad,’ which is below in this file and others. There is potential to expand the net benefits to this cp, and depending on where it is ‘Housed’ USPTO trade-off could be a net benefit as well.
Options for the cp include adding a ban for property rights
Topshelf
1NC --- CP Shell
The United States federal government should establish an opt-out antipatent system for emerging companies, including a term of qualified immunity from all third-party patent infringement assertions in return for forgoing obtaining any patents for all inventions developed during that time.
Antipatents solve.
Landers 15, [Amy L. Landers (Drexel University Thomas R. Kline School of Law), “The Anti-Patent: A Proposal for Startup Immunity,” Nebraska Law Review, https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=2808&context=nlr, accessed 7-11-2024, 2015] Mr.Mr.
This article proposes a voluntary opt-out system for emerging companies. Unlike a patent right to exclude, this proposal is for an anti-patent, which has the opposite purpose. Essentially, an anti-patent allows the owner to opt out of the patent system for a limited twenty-year term. This program includes two fundamental components. First, approved participants will obtain qualified immunity from all third party patent infringement assertions. During the immunity time period, a startup in the program will not acquire any liability for non-willful infringement of any patents. The entity can participate in permissionless invention and innovation—that is, the startup can experiment, invent, develop, and commercialize a product without any obligation to pay patent license fees or to respond to infringement allegations by patent holders. Secondly, as a true opt-out program, the entity must forgo obtaining any patents for all inventions developed during that time. The work performed by the entity during this time passes to the public domain.
Congress has the ability to create statutory immunity to insulate a person or entity against liability for patent infringement.40 As with other types of legal immunities, no liability inures to a startup that has a granted anti-patent. This program proposes a broad scope of immunity that protects the startup from all assertions of patent infringement for all work performed by that entity during the term. Thus, the immunity prevents lawsuits from those asserting patent claims that cover all, or any aspect, of the startup’s activity. This includes patents that read on the startup’s entire product and processes, as well any portion of either, and subsequent projects. The immunity applies to all theories encompassed by direct and indirect infringement, and applies to products and processes that are in development, as well as those that are commercially available. As a practical matter, the anti-patent eliminates any expense or uncertainty for a license, litigation, or court-imposed remedy.
Any suits that might be filed against the entity would be subject to a motion to dismiss asserting immunity as a complete defense. Disposition using this method is dramatically less expensive compared with full-scale litigation that typically runs into millions of dollars. Immunity allows startups to focus on research and development, invention, and innovation. Although the immunity time period can be varied, this proposal contemplates that the program match the current patent term of twenty years from the date of the application provides the maximum benefit to the public.
The present proposal is feasible under current administrative and court structures. Startups who seek to opt out can file an application that is akin to those filed to secure patent protection at the U.S. Patent & Trademark Office ("PTO"). This application must include disclosure and at least one claim for an invention that meets all of the requirements of the Patent Act. However, there is a critical distinction for an anti-patent. If this application is granted, no patent is issued and no right to exclude exists. Instead, the applicant is granted qualified immunity against all third party patents. As a true opt-out, that inventive entity cannot obtain the rights to any patent during the twenty-year anti-patent term.
This breadth of this immunity warrants careful examination procedures at the PTO. Typical examination of patent applications results in a significant number of erroneous grants.41 Because immunity applications will not be asserted against any entity, validity challenges in the courts might never occur.42 To minimize errors, the PTO must implement strict review standards. These include a requirement that the applicant perform a high quality prior art search prior to filing, and once an immunity application is received, subjected to an intensive search and level of review.43 To further decrease the error rate, the patent examination should adopt the “second pair of eyes” method used to scrutinize problematic business method patents.44
Under this proposal, published and granted anti-patents have preclusive effects that parallel the current law for patents and published applications. In other words, the disclosure of published anti-patent operates as prior art to prevent others from obtaining patent rights on the disclosures set forth therein.45 The logical conclusion from the operation of these rules is that others cannot obtain a patent for the same invention or any nonobvious variant that appears in the anti- patent’s disclosure. Rather, the disclosures from the anti-patent and any commercialized products offered for sale inure to the public domain. Because anti-patents cannot be asserted or infringed, others are free to use the information disclosed therein to replicate, vary, design around, and improve the technology disclosed therein.
Net Benefits
Net Benefit---Patents---1NC
Patents ruin disruptive innovation.
Landers 15, [Amy L. Landers (Drexel University Thomas R. Kline School of Law), “The Anti-Patent: A Proposal for Startup Immunity,” Nebraska Law Review, https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=2808&context=nlr, accessed 7-11-2024, 2015] Mr.Mr.
Despite these pressures and the best efforts of all involved, the first commercialization of a new idea can take years.60 Along the way, the process from idea to commercialization is iterative and riddled with setbacks, pivots, and deviations.61 As one study observed, in the early stages of a new product type the "process by which the technology is scaled from pilot to commercial production creates opportunities to learn by building."62 There is no set time-to-market because there is a widely variable relationship between the amount of resources that a startup uses, the complexity of the product and the time necessary to complete the commercialized product. All else being equal, the more time and funding that the startup possesses, the faster the startup can get to market. Further, the first version of a commercial product might be far from perfect, and improvements may be necessary. Marketing to obtain a critical mass of customers can extend the time that the startup collects its initial revenues even further. Events that detract from this drive to market, including the multi-million dollar drain of patent litigation, can stymie the startup's viability.63
The commercialization of the Nest thermostat provides as a brief illustration of the distinction between ideas, inventions, and commercialization, as well as the impact of funding on time to market. This device started as the idea of Tony Fadell, an experienced, former Apple designer who has been called the "godfather of the iPod." 64 While designing a home in 2009, Fadell began to explore ideas for a smart, energy saving thermostat after considering the low-tech designs that were available then on the market.65 He discussed his concept with a colleague in Fall 2009, who agreed to form Nest with Fadell.66 In the middle of 2010, the company was founded.67 In September of that year, Nest received its first round of venture funding.68 While he sought this funding, Fadell did not present prospective investors with a working prototype, but instead based on a crude Styrofoam model and a business plan in a slide deck.69 Based solely on this information, it might appear that at this juncture Faddel's idea had not yet materialized into an invention before September 2010. However, on September 14, 2010, Nest filed patent applications demonstrating that the startup's concept had indeed ripened into an invention as of that date.70
Nest first commercialized the smart thermostat in October 2011 after receiving two rounds of funding.71 Consistent with the startup's patent applications, the device predicts temperature needs by "learning" its user's habits so that it can customize home temperatures.72 After a calendar year, the device had sold units in the area of "in the mid hundreds of thousands."73 By the beginning of 2014, Google purchased Nest for 3.2 billion dollars, and the number of Nest thermostats sold had reached over a million.74 Nest has now developed a revised version of its thermostat, a smart smoke detector, and is thought to be developing in-home camera technology.75
Nest represents a concept-to-commercialization example that succeeded under the best of circumstances. Run by a highly credentialed inventor who was the "godfather of the iPod," Nest attracted early, robust funding that provided the resources to hire, design, and refine the original concept. By contrast, the early days of Fitbit, which ultimately designed the wearable fitness tracker, faced delays, undercapitalization, and failure (not once, but seven times).76 The company, which started in April 2007, began with $400,000 in private investment that proved inadequate to manufacture the device.77 Despite thousands of pre- orders, Fitbit had difficulty obtaining a second round of capital, finally convincing one venture capitalist to invest after speaking to thirty.78 Fitbit required tremendous focus to belatedly get the product to the market during late 2009.79 As the company's cofounder and CEO described, "one mistake in hardware and you're done. One mistake can set you back months."80 Fitbit's founders, both experienced entrepreneurs, noted that the first product launch experienced significant delays because of re-designs, logistical problems, and finding acceptable manufacturing sources.81 During this delay, rivals began moving in.82
Many startups fail long before reaching Nest or Fitbit's sales levels.83 The first few years are difficult, strenuous, and resource-starved.84 Although many startups fail for reasons that have nothing to do with the patent system, startups are the most likely entities to be slowed to a crawl or financially devastated by a patent suit. For some startups, the patent system may be precisely the right tool that carries the company through to viability rich with research and development in future products. For others, the potential for a patent suit may be a risk (or a reality) that is not worth its upsides.
Nest and Fitbit serve as examples of the type of startup that is eligible for the anti-patent program. Such entities begin with an idea that is refined toward commercialization, ultimately release a product, and move forward to create subsequent versions or other types of products. Startups in other fields, particularly software, might obtain the largest benefits from the proposed program. Currently, all of these companies are subject to patent demands that could stymie development. To appropriate a phrase, the patent system prevents the invisible hand of the startup market from deciding on an individualized basis whether the potential risk outweighs the rewards. Instead, firms are forced to decide to settle or litigate, which are expensive propositions even if there are strong defenses available, simply to continue to focus on innovation. Immunity relieves the startup from this Hobson's choice, and allows the entity to focus on permissionless innovation in the form of continuing research, development, and exploration.
Net Benefit---Public Domain---1NC
Expansion of IP fragments the public domain.
Depoorter 2004, [Ben Depoorter (UC Hastings College of the Law), “The Several Lives of Mickey Mouse: The Expanding Boundaries of Intellectual Property Law,” Virginia Journal of Law & Technology, https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=2017&context=faculty_scholarship, accessed 7-17-2024, 2004] Mr.Mr.
A. The Societal Effect of Propertization and Fragmentation of Intellectual Property Rights
1. Fragmentation of the Public Domain
The expansion of intellectual property law fragments the domain of intellectual property goods. The profusion of intellectual property rights divides the ownership of expressions, innovations and words in two principal ways.
First, by creating new intellectual property rights on material previously outside the scope of intellectual property law, new rights of exclusion are established on subject matter that was previously governed by unrestricted rights of use. For example, new database protection legislation provides effective exclusion rights to the creators, for "sweat of the brow" compilations that were previously available for free use.168
Second, by enhancing and adding to existing protection, exclusionary rights are added to the existing bundle of rights associated with those products. For instance, after copyright added the moral right of alteration to the copyright bundle, a buyer of a copyrighted work became confronted with an additional restriction on the use of the property rights that remain exclusive to the copyright holder.
To understand the full complexity introduced with the expansion of intellectual property law, one must appreciate that a discrete product consists of various inputs, each of which is subject to individual property rights that are not necessarily held by one individual or institution.169 The next section explores this issue in more detail.
Expansive public domain spurs disruptive innovation.
Kop 20, [Mauritz Kop (Stanford Law School TTLF Fellow, Founder of Musica Juridica and strategic intellectual property lawyer at AI Recht in Amsterdam), “AI & Intellectual Property: Towards an Articulated Public Domain”, Texas IP Law Journal, https://tiplj.org/wp-content/uploads/Volumes/v28/Kop_Final.pdf, accessed 7-16-2024, 2020] Mr.Mr.
AI & IP Policy: Regulating Disruptive Innovation. Intellectual property law has become the new battleground for ideas on how societies should deal with transformative change caused by disruptive tech.219 While trying to fill legislative gaps when laws cannot keep up with the pace of innovation, lawyers are becoming the policy makers. In this context, this section presents ten thoughts and policy suggestions on social, inclusive and innovation-friendly AI and data regulation.220 I start with a short legal policy vision of the direction I feel we should take. AI & IP for Dummies More or less protection for the owner of IP rights each has both advantages and disadvantages. More protection could stimulate costly and labor-intensive innova- tion, because that protection is offered as a reward. But the opposite, open access, also has social benefits. The degree of IP protection is therefore based on a consid- eration of pros and cons, and thus has a legal-political character. IP law policy aims to implement a regime that strikes a balance between un- derprotection and overprotection of IP rights—a regime that searches for an innova- tion optimum. That this is not an easy task as illustrated by IP history, which shows a pendulum swinging between underprotection and overprotection.221 Right now, we are in a stage of overprotection.222 In other words, intellectual property rights are getting too stretched. Besides that, IP law is poorly structured. This is not good because disruptive technologies such as AI, blockchain, and big data require a balanced, innovation-friendly regime. Solutions to resolve nega- tive effects that overprotection has are available. These include, on the one hand, technology-neutral open standards and exceptions or limitations such as the Ameri- can fair use principle, which allow more breathing room for both consumers and online platforms; and on the other hand, the introduction of an articulated public domain for AI Creations and Inventions (Res Publicae ex Machina). In general, we need more flexible IP laws and more open access. IP overprotection leads to market barriers for start-ups and SME’s and hinders international trade. When expressing preference for open access, AI & IP policy makers should ask themselves 2 questions: 1. To what extent can the assessment of the magnitude of the advantages and disadvantages of more open access versus more layers of IP rights be substantiated? This could, inter alia, be substantiated by sector specific empirical research. 2. And how and why do I weigh the pros and cons of this substantiation, and thus arrive at a preference for more open access? The goal should be at least a Pareto optimum/equilibrium, and preferably a Pa- reto improvement. B. 10 AI Related Policy Suggestions First of all, in order to have a sensible short-to-medium-term policy discussion about IP law in the context of emerging tech, it is important to demystify AI, resist anthropomorphisation and avoid speculation about the distant future. The state of the art is that we do not have Strong or General AI yet. What we have today is weak, pattern-based AI that is reaching task specific performance.223 It is a suite of tools that can be used for computer deductive reasoning and machine learning. Second, the unchartered terrain of IP and AI law makes it possible for legisla- tors to harmonize the acquis for AI internationally. For example, this can be done by introducing an official PD mark for AI Creations and Inventions (Res Publicae ex Machina). A harmonized, 

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