Inter Partes Review Neg - Michigan 7 2024 BEJK

Inter Partes Review Negative
Notes
Thanks to Ankit Bhasi, Rohan Chalamalasetti, Athena Chan, Ethan Huang, Alex Jayaratne, Cephas Liu, Clara Mengoli, Mihika Pandit, Neel Patel, Joseph Rozenblat, Res Seibels, and Varsha Sivasubramanian for their hard work on this aff and neg.
The judicial delegation advantage needs some more work before it’s ready to be read. The idea for this aff was to write an advantage based on legal precedent that did not require the aff to win that patents were good – and while we did put together an advantage that meets that criteria, it’s difficult to answer the distinguish CP given the impact we were able to write about federalism. We also considered a takings clause advantage to fill this purpose, but that was even more difficult to impact than judicial delegation proved to be. This aff and its neg are a good illustration of what we believe legal precedent advantages will look like this year and how the neg can respond by counterplanning out of those advantages while reading patents disads.
If desired, the invalidation advantage could be split into competitiveness/innovation like the existing PERA aff, and the plan could be altered to remove the reference to delegation – this would give the aff a 1AC about the patent system broadly but would not link to subject matter eligibility disads like the pathogen patents DA insofar as it would not alter subject matter eligibility.
Advantage CPs
Pharma
1NC---Pharma Adv CP
The United States federal government should hold that inter-partes petitioners simultaneously short-selling the stock of opposing parties constitutes insider trading.
It solves hedge fund abuse while preventing bad patents.
Ariel D. Multak, 2017, JD from Fordham and is an associate at the Braverman Kaskey Garber, Volume 23, Issue 1 of the Fordham Journal of Corporate and Financial Law, “The Big Patent Short: Hedge Fund Challenges to Pharmaceutical Patents and the Need for Financial Regulation and the Need for Financial Regulation,” https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1455&context=jcfl
CONCLUSION
Truly "bad" patents should be invalidated, and the IPR system has created an efficient way to achieve this social good. Entirely eliminating third-party challenges would eradicate the very purpose for which IPR was created; namely, to make it easier for interested third-parties to institute challenges. By addressing hedge fund abuse of IPR through financial regulation, it is possible to maintain the minimal standing requirement, thus allowing post- grant patent challenges early in a competing product's life cycle, while prohibiting investors from profiting from IPR challenges.
A short-selling petitioner can be held liable under either a general fraud and market manipulation theory or an insider trading theory. Holding the short-selling petitioner liable as a temporary insider is the ideal solution to curb this investment behavior, as it does not necessarily [*337] entail congressional legislation or SEC rulemaking, but can be achieved through further judicial interpretation of the term "insider."
2NC---Pharma Adv CP---Solvency
It’s sufficient AND enforceable enough to curtail insider activity.
Ariel D. Multak, 2017, JD from Fordham and is an associate at the Braverman Kaskey Garber, Volume 23, Issue 1 of the Fordham Journal of Corporate and Financial Law, “The Big Patent Short: Hedge Fund Challenges to Pharmaceutical Patents and the Need for Financial Regulation and the Need for Financial Regulation,” https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1455&context=jcfl, Ankit
A. Insider Trading
Conflict of interest investment activity can be curtailed by treating it as insider trading. Insider trading involves making a securities trade on the basis of knowledge of material, nonpublic information.145 While not all insider trading is prohibited, “[i]llegal insider trading refers generally to buying or selling a security, in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material, nonpublic information about the security.”146 Bass cannot be characterized as a classic insider, for he is not an insider of the companies whose stock he short sells, and therefore he does not owe fiduciary duties to the shareholders of those companies. However, an individual who challenges a patent at the PTAB should be considered a temporary insider until the proceeding becomes public knowledge.147 Thus, a short sale of the stock of the patent-owning company would be considered insider trading in contravention of the Exchange Act. Expanding the definition of insider trading to include someone with a conflict of interest is supported by the public interest purpose of the Exchange Act—“to insure the maintenance of fair and honest markets.”148 Further, an expanded definition tracks with the trend in case law to expand the scope of liability for insider trading.149
Courts have recognized that an insider’s duty to refrain from insider trading results from the fiduciary duties owed to the shareholders of a corporation.150 An insider has traditionally been defined as an officer, director, or controlling shareholder;151 these individuals are prohibited from trading on material, non-public information. Although classical insiders were the group that the Exchange Act regulation initially targeted, changing business practices require reevaluating how an insider is defined.
Indeed, the need to recognize a “short-selling plaintiff” as a temporary insider has been acknowledged in academic literature. Yahya proposes a separate category for short-selling plaintiffs, in which they are deemed constructive or temporary insiders until such time as knowledge of the lawsuit has become public.152 Yahya’s category should include not only the “short-selling plaintiff,” but also an individual with a conflict of interest such as Bass, who might be termed a “short-selling petitioner.153 Whether a “plaintiff” in the judicial system or a “petitioner” in a USPTO proceeding, individuals shorting the stock of a corporation and then instituting an adjudicatory action that potentially decreases the defendant’s stock value should be treated identically.
Section 10(b) of the Exchange Act has been characterized as “powerful” due to its broad, general language.154 It prohibits the use of “any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors.”155 The scope of Section 10(b) has been expanded through rules promulgated by the SEC, including Rule 10b-5, which prohibits the employment of “any device, scheme, or artifice to defraud,” or the making of, “any untrue statement of a material fact or . . . omit[ting] to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading,” or engaging, “in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.”156
Judicial Delegation
1NC---Distinguish CP
Distinguish CP.
The United States federal government should rule that Congress cannot delegate private right cases to non-Article III courts, clarifying that patents are public rights that can be delegated in non-Article III courts.
Patents are distinguishable from other private rights cases --- prefer the Supreme Court’s ruling
Creel 22 (Thomas L. Creel – 30 years of experience as first chair intellectual property litigator and counselor, and 20 years of experience teaching patent law at Columbia University Law School. 1/12/22, “Are Patents Property That Is Protected by the U.S. Constitution?”, https://www.jamsadr.com/files/uploads/documents/articles/creel-thomas-aba-are-patents-property-01-2022.pdf, Landslide, Volume 14 Number 2, A.Jay)
Christy
The first Claims Court case to find that patents are not property under the Fifth Amendment’s takings protection is Christy. The Claims Court in Golden later found the same. The Christy court distinguished private and public rights, relying on the Oil States case:
The Supreme Court observed that its longstanding precedent teaches that “the decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise,” and noted that the franchise “is a ‘creature of statute law.’” It emphasized that “[p]atent claims are granted subject to the qualification that the [Patent and Trademark Office] has ‘the authority to reexamine—and perhaps cancel—a patent claim’ in an inter partes review” and that “franchises can be qualified in this manner.”
Based on its analysis of the Oil States, older Supreme Court, and Federal Circuit cases, the Christy court held that
modern invention patents are distinguishable from land patents because the Patent and Trademark Office exercises continuing authority over invention patents, whereas the government generally cedes “all authority or control” over the land in question when it 14 15 16 issues a land patent. In short, patents are public franchises, not private property. Because “[a] taking compensable under the Fifth Amendment inherently requires the existence of ‘private property,’” patent rights are not cognizable property interests for Takings Clause purposes.
2NC---Distinguish CP
The counterplan solves ---
It establishes precedent that solves the second advantage by fiating Congress forfeit jurisdiction over private rights – that’s the only burden of solvency. It doesn’t link to the net benefit – the courts are required to explicitly distinguish that precedent doesn’t apply to patents - that distinction is possible, proven by patent precedent jurisprudence in the past.
Distinguishment of court precedent is flexible and solvent in patents --- empirics.
Ernst 19 (Samuel F. Ernst – Associate Professor of Law, Golden Gate University. 2019, “A Patent Reformist Supreme Court and Its Unearthed Precedent”, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1707&context=iplj, Fordham Intellectual Property, Media and Entertainment Law Journal, Volume 29, Issue 1, A.Jay)
Hence, the Court has made explicit that stare decisis is a flexible doctrine; it is not “inexorable command.”203
But even when the Court is not overruling its precedent and purports to be following precedent faithfully, stare decisis is a very flexible tool to shape the law. This is because of the tool of “precedent vitality.” Supreme Court opinions vary in their vitality. Hanford and Spriggs write, “[s]ome precedents are more legally authoritative than others and thus have an enhanced ability to justify and legitimize the justices’ policy choices.”204 But it is not the age of the precedent that determines its vitality or even particularly the factors mentioned by the Court in Planned Parenthood for overruling a case.205 Rather, Hanford and Spriggs argue that “the vitality of precedent . . . derive[s] from the Supreme Court’s interpretation of it in other cases.”206 Hence, while appearing to apply its precedent faithfully, the Supreme Court can enhance or decrease the vitality of its precedent in various ways. The Court may apply the rationale of one of its opinions to new facts; it may expand the rationale of one of its opinions; or it may distinguish its precedent or limit it to its particular facts or even ignore a particular case altogether. By these methods, “the decision to interpret precedent is driven by the desire to influence the scope and meaning of existing precedent and the goal of legitimizing new legal policy.”207
This is how the Supreme Court has achieved its patent reform project to favor accused patent infringers. The most common rationale the Court has employed to justify reversing the Federal Circuit is that the circuit court has improperly cabined or disregarded its precedent.208 But which precedent? The Court carefully selects which precedent to augment and revitalize and which precedent to sap and diminish.
A striking example of precedent vitality in action is in the recent opinion in Impression Products v. Lexmark. 209 The Court had two bodies of precedent that appeared to be in conflict. In cases such as the 1917 case, Motion Picture Patents, the Court had held that contractual restrictions imposed by patent holders were ineffectual to evade patent exhaustion.210 In Motion Picture Patents, the patent holder had imposed a contract requiring purchasers of its patented film projectors to use the projectors only with its separately sold film reels.211 When the patent holder brought a patent infringement claim to enforce the licensing restriction, the Court held that the claim must be dismissed because the patent rights were exhausted by the authorized first sale.212 But in a 1938 case called General Talking Pictures Corp. v. Western Electric Co., the Court reached a contrary result on almost indistinguishable facts.213 In that case, the plaintiff authorized a third party to make and sell its patented vacuum tube amplifiers, but imposed a contractual restriction that purchasers of the equipment could only use it with amateur radio sets and not in motion picture houses.214 In this case, the Court held that the patent holder could sue purchasers of the equipment who used it in movie theatres for patent infringement and that, because the contract imposed a restriction on the use of the equipment, there was no authorized first sale to purchasers who wanted to use it in a movie house.215
The Federal Circuit had created a rule that contractual restrictions such as the ones at issue in these cases were effective to evade exhaustion, so long as they did not violate the antitrust laws or constitute patent misuse.216 This was based, in part, on a statement by the Supreme Court in Motion Picture Patents that it was “confirmed in the conclusion which we are announcing” regarding patent exhaustion by the fact that Congress “has enacted a law making it unlawful for any person engaged in interstate commerce ‘to lease or make a sale or contract for sale of goods . . . on the condition, agreement or understanding that the lessee or purchaser thereof shall not use . . . the goods . . . of a competitor . . . .’”217
Distinguishing precedent establishes rules as binding as statute and is comparatively more certain than case
Lamond 5 (Grant Lamond – University lecturer, Balliol College, Oxford. 7/22/05, “DO PRECEDENTS CREATE RULES?”, https://ora.ox.ac.uk/objects/uuid:2a1a846e-bb83-4bb2-a64d-6643a7ef9e4c/files/m91f39c30ed2d74be9ab17c5d9919db8c, Cambridge University Press, A.Jay)
Precedents lay down rules in their rationes, and such rules are binding in later cases whose facts fall within the scope of those rules.
That is, precedents lay down rules (rationes) in their judgments—just as statutes lay down rules in their provisions—and such rules are binding in later cases whose facts fall within the scope of those rules. Statutes and precedents simply employ a different process for laying down rules.
Some later courts have the power to overrule precedents, but all later courts have the power to distinguish precedents, which amounts to a limited power to modify the rule laid down in the precedent case.
That is, some later courts enjoy the power to repeal the rationes of earlier precedents, whereas all courts enjoy a limited power to amend the rationes of a precedent case.
The application of the rule in later cases is determined by the precedent court’s justification(s) for the rule.
That is, the later court determines the application of the precedent’s ratio by reference to the best understanding of how the precedent court meant the ratio to be applied, just as the application of a statute is deferential to the legislator’s supposed purpose in passing the enactment. In both cases the court’s application of the legal rule must be faithful to the intentions of the law-maker.
The function of the doctrine of precedent is to create new legal rules to settle uncertainty in the law, so as to provide guidance to individuals and the courts. That is, the function of the doctrine of precedent is to enable courts to create legal rules to provide guidance for individuals and later courts. The courts’ role is akin to delegated law-makers exercising directed powers: they must decide cases by creating a new rule which best furthers the purpose(s) of the area of law in question.
Statutes and precedents differ, of course, because legislators enjoy far wider discretion in what they can do (and what considerations they can act on), but as to the type of normative standard which they create, they are on a par. The assimilation of precedent to statute facilitates a unified account of law in common law systems: the basic building blocks of legal doctrine are legal rules.
Standing Requirement CP
1NC---Standing Requirement CP
The United States federal government should create a requirement that those who intend to initiate an IPR must either be defendants in an infringement suit or must have been sent a cease-and-desist order by the patentee
Amendments of the standing requirement solves the case and avoids the Trolls DA.
Alex Jurisch 18. J.D. magna cum laude, 2017 from the Seattle University School of Law. “A Prescription for Biopharmaceutical Patents: A Cure for Inter Partes Review Ailments.” Seattle University Law Review. 2018. https://heinonline.org/HOL/LandingPage?handle=hein.journals/sealr41&div=53&id=&page=
Inter partes reviews were surely not meant to be abused for financial gain and were not designed to help invalidate otherwise valid patent claims. Unfortunately, this has been the result, and while there is consensus that the system is broken, there seems to be little consensus on how to fix it. A recent proposal raised in the House Judiciary Committee was designed to shield pharma patents from IPR review; however, it never made it out of committee.84 Other attempts have been made to contest the constitutionality of post-issuance reviews, though they too have been largely unsuccessful. 8 'Although the Supreme Court has been deliberating the constitutionality of IPRs in the Oil States case, the consensus among patent professionals is that the Court will likely uphold IPRs as constitutional.8 6 Other legislative attempts have focused on amending patent litigation laws, but because the issues arise during IPRs-not litigation-such reforms are unlikely to be of any help.87
In light of the lack of solutions to the current problem, I endeavor to put forward a novel approach to improve IPRs by borrowing from other procedures in order to cure the most egregious defects of the IPR process: the standing requirement is too low, the amendment procedure is too draconian, and the claim interpretation is too biased towards the patent challenger.
One of the greatest criticisms for IPRs is that, unlike cases in Article III courts, there is no standing requirement to initiate an IPR. Anyone who has unearthed allegedly invalidating prior art may file a review with the PTAB." Because the Supreme Court has largely avoided any challenges of IPRs on constitutional grounds, 89 the duty to solve the standing issue must fall upon Congress. Abuse of IPRs in meritless cases can be addressed most simply by creating a requirement that those who intend to initiate an IPR must either be defendants in an infringement suit or must have been sent a cease-and-desist order by the patentee, similar to a CBM. This keeps the process of invalidating unworthy patents relatively inexpensive but assures that only parties with some legitimate interest in the validity of the patent can move forward with an IPR.
Another harsh aspect of the current IPR proceedings is the difficulty of getting a challenged claim amended. Although statutes permit patentees to cancel a challenged claim and make a reasonable number of amendments, 90 the amount of ame

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