Blog Post: 2022 HBCU Summer Interns join IIPSJ
2022 Summer Interns
Phoebe Ogunwobi is a rising 2L at North Carolina Central School of Law. Phoebe was born and raised in London, United Kingdom. She has a MPS in Paralegal studies from The George Washington University in Washington, D.C. and a BA in Political Science from The University of North Carolina at Greensboro. Before attending law school Phoebe worked in both law and technology fields and hopes to continue to strengthen her interests in Intellectual Property and International Law.
Leandre’a Scott is a rising second-year student at North Carolina University School of Law. Leandre’a graduated from East Carolina University with a Bachelor of Science in Biology. She has an interest in Intellectual Property law and aims to complete a patent clinic in the fall. Leandre’a strives to be a powerful force in anything she does and enjoys learning new things and then utilizing that knowledge for the better. Leandre’a is excited to continue to learn and grow within the IP community.
Leeandria Williams is an evening student at Southern University Law Center where she is a member of the Intellectual Property Law Association and the Fashion Law Society. She currently works in the client development department at Akerman LLP as a Senior Communications Specialist. A native of Houston, Texas, she received her undergraduate degree in journalism from Howard University in 2012. Outside of her professional and educational duties, she is an active member of Alpha Kappa Alpha Sorority, Incorporated and volunteers at various community events. She also proudly represents her hometown as the reigning Ms. Black Houston USA 2022.
Blog Post Legislation Update
Proposed legislation and IP social justice
Device Access for Every American Act
The Device Access for Every American Act was introduced to both houses of Congress on September 14, 2021. The bill, which was introduced by Senator Raphael Warnock of Georgia and Congressman Donald McEachin of Virginia, claims to authorize the Federal Communications Commission (“FCC”) to create programming that allows Americans in need to redeem $400 vouchers so that they may buy laptops, tablets, computers or other devices. This legislation includes a proposal for $5 billion in federal funding for the establishment and implementation of the program. It would permit two low-income individuals per household to receive the vouchers so that families are able to have multiple devices. This effort, the Act additionally claims, would direct the FCC to integrate with device retailers as program participants, promote the program, and assist eligible Americans with enrolling in the program. Read the full text of the bill here.
Unleashing American Innovators Act of 2021
On September 21, 2021, U.S. Senators Thom Tillis and Patrick Leahy introduced The Unleashing American Innovators Act of 2021 as part of a bipartisan effort to amend the Leahy-Smith America Invents Act by addressing satellite offices of the United States Patent and Trademark Office (“USPTO”). The bill aims to expand access to the patent system for those who wish to participate in it by proposing the establishment of a sixth regional office in the Southeastern U.S. and creating “community outreach” offices around the country to provide support to potential patent seekers. If passed, the Act would create a program for first-time patent applicants which would create additional resources for assisting applicants with an application following a denial. The bill also seeks to reduce statutorily required fees for “small and micro entities” through amendments to the language of 35 U.S.C. 41(h) and the Leahy-Smith America Invents Act. Read the full text of the bill here.
Pride in Patent Ownership Act
Accompanying their introduction of the Unleashing American Inventors Act of 2021, U.S. Senators Thom Tillis and Patrick Leahy introduced the Pride in Patent Ownership Act to “ensure that the public has access to the true owner of a patent.” The bill aims to resolve the issue of costly litigation that parties undergo in identifying the beneficial owner of a patent by promoting transparency and creating a mandatory reporting requirement for patent owners. The reporting requirement would apply to the initial issuance of a patent and any subsequent transactions which results in a change in the “true ownership” of the patent. The mandatory reporting requirement, according to the bill’s official press release, would prove beneficial in instances where small businesses hope to identify the true patent owner for purposes of obtaining a license. Read the full text of the bill here.
Blog Post UIC Law Name Change
UIC Drops John Marshall Name
by Delaney Halvey & IIPSJ Staff
Beginning on July 1st, 2021, The John Marshall Law School will no longer exist as it has for 122 years. The board of trustees voted in late May to rename the school University of Illinois Chicago School of Law, after a months-long review process spurred on by the rise of the Black Lives Matter movement after the murder of George Floyd in the summer of 2020.
The school’s original namesake, John Marshall, was not always widely viewed as a controversial historical figure. The 19th century jurist is referenced in the naming of more than a dozen other schools in the US, and has long been esteemed for his role in forming the American judicial system in his 34 year tenure as Chief Justice of the Supreme Court. However, Marshall also owned slaves for most of his life and rendered a number of judicial decisions in the favor of slave owners, a reality recognized by several petitions circulating online regarding this and other “John Marshall” institutions.¹
UIC Chancellor Michael Amiridis said of the change that a “thorough and carefully studied process [was followed] that included input from all corners of the institution and beyond, considered issues of racial injustice and aimed to ensure that our university continues to be a place where diversity, inclusion and equal opportunity are supported and advanced.” The change leaves only two law schools bearing Marshall’s name: Atlanta’s John Marshall Law School and the Cleveland Marshall College of Law. As reported by the National Jurist, “a spokesperson for Atlanta’s John Marshall said of the move: ‘Our Board of Directors is aware of UIC John Marshall’s decision and has no further comment at this time.’ Cleveland Marshall has also declined to comment. Earlier, it announced it was forming a law school name committee to look into the appropriateness of the name.”²
Expressive works of historical tribute and affiliation can implicate complex issues of IP Social Justice. Questions can arise as to the messages they intend to communicate, including the actions they intend to honor, and the attendant effect upon the mandate of equitable access, inclusion, and empowerment inherent to the social function of the IP system. These issues can be as multifaceted as the lives of the historical figures involved, and there is no one size fits all solution. Instead, resolution of these issues begins with the individual or institutional will to engage in difficult conversations toward forging, or re-forging, the national identity. The social breadth and significance of IP protection is germane to these conversations, and every stakeholder in the IP ecosystem has an interest in their conclusions. We encourage you to join IIPSJ in participating in and helping to shape this national discourse.
[1] https:/https://www.acslaw.org/expertforum/no-law-school-should-be-named-for-john-marshall/
[2] https://www.nationaljurist.com/national-jurist-magazine/uic-drops-john-marshall-name-citing-slave-owning-past
Blog Post A Historic Victory for Student Athlete’s IP Rights—The NCAA Changes NIL Compensation Rules
A Historic Victory for Student Athlete’s IP Rights—The NCAA Changes NIL Compensation Rules
by: Cole Baker & IIPSJ Staff
Starting July 1, the NCAA changed its rules regarding student athlete commercial use and exploitation of their names, images, and likenesses (“NIL”) and their accompanying intellectual property rights, referred to as the right of publicity. For the first time in its history, the NCAA will allow member-schools to permit student-athletes to pursue opportunities to profit from their NIL and publicity rights, such as in product endorsement deals. The NCAA change in policy will finally allow student-athletes to participate in the billion dollar NIL industry derived from their talent, eradicating decades of unfair exploitation and IP social injustice. The NCAA adopts the new rules on an interim basis until “federal legislation or new NCAA rules” are enacted.
College Athletics as a Path to Education: The “Play for Pedagogy” Bargain
The modern tradition of the collegiate athlete is rooted in a bargain of the exchange of young athletic talent for a college education. However, with the advent of mass televised events and games, colleges and universities changed that bargain and insisted that student-athletes also allow them to exploit their NIL IP rights, but without adding anything to the student-athletes’ side of the deal. By unilaterally restructuring the student-athlete bargain, NCAA schools gained as much as $11 billion in revenues annually.¹ Seemingly everyone shared in these revenues, with the NCAA president earning more than $2 million a year, the top-50 Division 1 football coaches earning a median salary of more than $4 million a year, and NCAA schools receiving hundreds of millions of dollars in endorsements from athletic brands.²
Everyone benefited except the student-athletes. Under NCAA rules, students were not only denied a share in these revenues, they were also prevented from engaging in their own deals to benefit from their NIL intellectual property. For instance, for most of the past two decades, college athletes had their images and likenesses copied into video games but were not compensated by the video game makers. These rules even resulted in the loss of two University of Iowa swimmer’s eligibility due to a clothing line they created. The clothing line had nothing to do with swimming; however, the GoFundMe page that they used to start production mentioned that the two had met by swimming together at Iowa. In order to regain eligibility, both swimmers had to remove any pictures of themselves from the business’s website as well as any mention of University of Iowa swimming.³
A Policy Shift Toward IP Social Justice
In the wake of growing public criticism, targeted social activism, and a rapidly changing legal landscape, the NCAA Board of Governors voted on June 30, 2021 to approve a new policy, effective July 1. The Board announced that it had adopted a, “uniform interim policy suspending NCAA name, image and likeness rules” for student-athletes in every sport.
The policy is effective across “all three divisions,” and provides a four-prong guidance structure for member schools. The first guidance indicates that “Individuals can engage in NIL activities that are consistent,” with each school’s state law, and that schools “are responsible for determining whether those activities are consistent with state law.” The second indicates that athletes in states without a NIL statute can “engage in this type of activity” in accordance with NCAA rules. The third allows athletes to retain a “professional services provider” for advice in pursuing NIL monetization opportunities. Finally, the fourth guidance urges athletes to report their NIL activities to their schools.
The NCAA’s change in policy comes in response to immense public pressure, including new state laws and successful challenges to NCAA policies in the courts. In 2019 California enacted the “Fair Pay to Play Act”, which prohibits schools from preventing their student-athletes from exploiting their NIL intellectual property, and more than 30 other states soon passed similar legislation. Recently, in NCAA v. Alston the United States Supreme Court ruled in favor of an antitrust challenge to the NCAA’s policies, with Justice Kavanaugh noting that “the NCAA’s current compensation regime raises serious questions under the antitrust laws.”4 And the NCAA’s change in policy comes in the wake of a national conversation about systemic racial exploitation. While the NCAA’s compensation policies affect student-athletes of every race and gender, the disproportionate impact on black athletes, who make up the majority of athletes in the NCAA’s top revenue generating sports, football and basketball,5 has long been evident.
IIPSJ has long advocated for and today welcomes this progressive evolution in NCAA policy, which implements an IP social justice perspective toward student-athlete NIL intellectual property rights. While the policy change does not require schools to pay student-athletes, and still allows NCAA schools to capitalize on student-athlete NIL intellectual property through televised games, merchandising deals, and the like, the change in policy finally allows the student-athletes the chance of also benefiting from their intellectual property.
The NCAA is not out of the weeds of litigation, however. There is another consolidated class action in progress in the Northern District of California where athletes are claiming the NCAA’s rules on NIL are in violation of antitrust laws. Notwithstanding the NCAA’s changed policy, the suit goes further than what the NCAA’s policy change did. It seeks to permanently tear down all remaining NIL strictures. Furthermore, the suit seeks to recoup and distribute money to athletes made by the NCAA and its member conferences in licensing television rights.6
As the NCAA acknowledges, federal legislation is necessary to provide a national, uniform framework for student-athlete use of their NIL intellectual property rights. In the meantime, the new NCAA policy is an important step toward providing student-athletes a meaningful stake in the IP system, and fulfilling the social justice obligations of the intellectual property regime.
¹ Robert Zafft, Forbes, The Supreme Court, NCAA, and Juneteenth (July 5, 2021).
² Id.
³ Erin Jordan, The Gazette, Hawkeye swimmers’ clothing line causes NCAA violation (August 14, 2017).
4 NCAA v. Alston, 141 S. Ct. 2141, 2208 (2021).
5 NCAA.org, NCAA Demographics Database (March, 2021).
6 Zachary Zagger, Law360, NCAA Athletes Say Name, Image ‘Experiment’ Proves Case (July 27, 2021) (January 9, 2021).
For more on this topic, check out this page: https://iipsj.org/iipsj-advocacy/student-athlete-nil/
Blog Post 2021 Summer Interns
Meet Our 2021 Summer Interns
Cole Baker is a rising 2L at the University of Maryland Francis King Carey School of Law. He is originally from Denver, Colorado. Cole graduated cum laude from the University of Delaware in the spring of 2020 where he played on the Division One men’s lacrosse team and double majored in Political Science and Economics. There, Cole was the chair of the men’s lacrosse team’s “Academic Weapons Committee,” an academic tutor for Political Science, Economics, and Science courses, and was a member of the Horn Center for Entrepreneurship. At Carey Law, Cole is a member of the National Trial Team which participates in mock trial competitions throughout the nation.
Erin Williamson is a rising third-year law student at The George Washington University Law School where she is concentrating her studies in intellectual property. Her interest in intellectual property began during her time as an undergraduate at Drexel University studying Music Industry Business. Erin aspires to pursue a career in copyrights and trademarks to advocate for the rights of creators. When she is not busy studying, she enjoys weightlifting and discovering new music for her ever growing Spotify library.
Delaney Halvey is a rising second semester 3L at Georgetown University Law Center (graduating in December 2021.) Delaney grew up in Tucson, Arizona, where she enjoyed hiking, camping, trail running, and mountain biking. In 2018, Delaney graduated from Texas A&M University with a degree in industrial engineering and minors in cybersecurity and math. As a college student, she knew she wanted to attend law school and was able to shadow several members of Raytheon’s legal department when she worked there as an engineering intern. As a law student, Delaney has worked in D.C.’s Landlord Tenant Resource Center, as a Research Assistant and Teaching Assistant at Georgetown, as an intern for the U.S. Office of Personnel Management Inspector General, and in her personal favorite job as a tennis coach at Brentwood Elementary. Delaney am excited for the opportunity to now be working for IIPSJ, and is looking forward to everything she will learn this summer.
Sara Griffiths was born and raised in Kingston, Jamaica. After relocating to the United States for high school she went on to graduate magna cum laude from Miami-Dade College and thereafter transferred to American University and completed her education at the School of International Service. While there she earned a bachelor’s degree in International Studies with concentrations in Identity, Race, Gender and Culture and Peace, Global Security and Conflict Resolution with a regional focus in Latin America and the Caribbean. She is presently a law student at Georgetown University Law Center where she participates in both the Global Law Scholars and Human Rights Associates Program. She has interned at the Jamaican Court of Appeal, the 39th regional Caribbean Community (CARICOM) Heads of State Conference, and the Embassy of Jamaica at Mexico. She has particular interests in international human rights and public international law and intersectional and critical race theory and is fluent in English as well as Patois—the Jamaican Creole dialect.
Blog Post TPAC/PPAC Nominations
USPTO Seeking Nominations for Vacancies on the TPAC and PPAC
by Delaney Halvey
The U.S. Patent and Trademark Office (USPTO) is seeking nominations to fill upcoming vacancies on the Trademark Public Advisory Committee (TPAC) and Patent Public Advisory Committee (PPAC.)[1] TPAC and PPAC committee members are responsible for representing the diverse interests of the users of the USPTO with respect to trademarks and patents. Some of their recent work included in the TPAC and PPAC 2020 Annual Reports includes: a TPAC commendation of Trademark Operations during the COVID-19 pandemic, including modernization of IT products and adaption to teleworking; formation of a PPAC AI Subcommittee to provide guidance to USPTO leadership; TPAC review of the TTAB expedited cancellation pilot program aimed at “decluttering” the Trademark Register; and PPAC oversight of a Congress-driven effort to diversify inventorship.[2]
As these projects highlight, the members of these committees have an important and influential role in USPTO operations. They keep the USPTO accountable to their goals, both self-generated and passed down from Congress, while also providing input into future goals. Because there are several degrees of separation between the operations of the USPTO and the votes of stakeholders, the committees remind USPTO leadership of these stakeholders’ interests. Examples of this middleman role include public meetings, which provide a public forum for interested parties to air their opinions, and fee setting hearings, which allow for stakeholder testimony.
For the committees to be effective representatives of the community who uses the USPTO system, it is vital that their membership reflect the diversity of this community. Federal law requires each member to have a “substantial background and achievement in finance, management, labor relations, science, technology, and office automation,”[3] and provides only that small and large entity applicants must be represented.[4] Perhaps as is to be expected, the committees have been historically biased in memberships towards representatives of large entity applicants. Aside from the size of the entity applicant, other diversities the committee membership would benefit from reflecting include: the racial and cultural background of applicants, the industry of applicants, the gender identity of applicants, and the geographic location of applicants.
Nominations must be submitted electronically by completing the corresponding Public Advisory Committee application: https://tinyurl.com/ynae4a67 for the Patent Public Advisory Committee, or https://tinyurl.com/hcux6462 for the Trademark Public Advisory Committee. These applications ask for detailed contact information for both the nominating and nominated party, as well as information regarding publications, awards, credentials, and details about the organization represented by the nominated party. Nominations will be accepted on or before July 9, 2021.
[1] https://www.uspto.gov/about-us/news-updates/uspto-seeks-nominations-patent-and-trademark-public-advisory-committees
[2] https://www.uspto.gov/sites/default/files/documents/TPAC_2020_Annual_Report.pdf & https://uspto.gov/sites/default/files/documents/PPAC_2020_Annual_Report.pdf
[3] 35 U.S.C. 5(b)(3)
[4] https://www.federalregister.gov/documents/2021/05/25/2021-11047/patent-and-trademark-public-advisory-committees
Delaney Halvey is a summer intern with IIPSJ. She is a rising second semester 3L at Georgetown University Law Center (graduating in December 2021.)
Blog Post Status Update on Student Athlete NIL Legislation
Status Update on Student Athlete NIL Legislation
by Cole Baker
Name, image, and likeness (NIL) legislation takes effect in 7 states throughout July. These states (Alabama, Arizona, Florida, Georgia, Mississippi, Nebraska, and New Mexico) are part of a nationwide push by state legislatures to enact laws that allow for collegiate student-athletes to profit off their NIL. 39 states have introduced bills to their legislatures, and 16 states have officially signed NIL legislation into law.
How We Got Here
In September 2019, Gov. Gavin Newsome (CA) signed into law California’s Fair Pay to Play Act making it unlawful for universities to revoke a student-athlete’s scholarship for receiving compensation from use of his or her NIL in a commercial nature.¹ After numerous states followed suit by enacting similar legislation, the NCAA Board of Governors released a statement indicating that it would look to “modernize” its rules and add “flexibility” to its policy of banning any monetization of NIL by participating student-athletes.² After months of deliberation and direction to each subdivision of competition to discuss changes to its policy, the NCAA released another statement in April 2020 indicating that it is supportive of allowing athletes to sign endorsement contracts and appear in advertisements.³ The NCAA received draft legislation from each of its 3 subdivisions for updates to NIL policy in November of 2020.4
The NCAA has repeatedly called on Congress to enact federal legislation to both standardize NIL policy on a national scale and carve out an antitrust exemption for the NCAA to allow caps on NIL compensation earned by its athletes.5 So far there have been 8 bills introduced to Congress dealing with the issue. The Senate Committee on Commerce, Science, and Transportation held a hearing on June 9th to receive testimony on the issue of NIL for collegiate athletes, how a national policy would benefit consistency and fairness of its implementation both for institutions and athletes, and the competing interests at state between the NCAA, its member-institutions, and athletes. Senators Booker and Blumenthal stressed the importance of health-care related legislation being included in the prospective bill and championed their Athlete Bill of Rights. Mark Few, head coach of the Gonzaga men’s basketball team testified indicating it is embarrassing that nothing has been done thus far with respect to creating avenues for athletes to exploit their NIL rights. Mark Emmert, president of the NCAA, also testified urging the Senate Committee to consider five policy matters included in any NIL bill: (1) the bill put in place a unified national NIL model, (2) the bill support Title IX considerations, (3) the national policy expressly preempts state NIL law, (4) the bill safeguard the non-employee status of student athletes, and (5) the bill create legal exemptions for the NCAA and its member-institutions to antitrust concerns. Emmert received push back on the latter two recommendations from testifying witnesses and senators alike. Senator Cantwell, chair of the committee, concluded the hearing by indicating that due to the fact that more than half of the senate-committee members testified, the Commerce Committee is committed to get something done in regards to national NIL policy.
The NCAA has also received federal attention from the Department of Justice’s antitrust division, which undertook meetings and corresponded with NCAA officials regarding the policy reforms.6 The DOJ has expressed it’s wariness of the NCAA policies as violating antitrust laws. It has specifically taken issue with the antitrust concerns arising out of the NCAA’s purported 3rd-party “clearinghouse” agency proposal. The policy proposal indicates athletes would be forced to disclose NIL earnings to ensure compliance with a capped sum. The sum would be dictated by the NCAA’s determination of what represents a “fair-market value” for NIL.7 Furthermore, the Supreme Court heard oral arguments in Alston v. NCAA. While not dealing directly with NIL, it is an antitrust suit which may answer the question of whether the NCAA model is truly one of amateurism in a decision likely to be released this month.8 To learn more about the case, NPR recently looked into it in their Planet Money podcast.
A Summer of Change
So far, 39 states have introduced bills relating to student-athlete NIL compensation within their legislatures, and 16 of those states have signed these policies into law.9 The NCAA Division 1 council is expected to act on proposed policies on June 23, 2021.10 On July 1, 2021, NIL laws take effect in Alabama, Florida, Georgia, Mississippi, Nebraska (pending individual school adoption) and New Mexico; Arizona’s laws will take effect on July 23.
These state laws differ in scope. Some are less restrictive than the proposed NCAA policies, whereas others are more restrictive. For example, Mississippi’s law permits schools to prohibit athletes from wearing any clothes with a sponsoring-entity’s logo or insignia at any school-sponsored event, whereas the NCAA policy would regulate the appearance of athlete sponsors’ logos only during pre- and post-game activities.11 Furthermore, Mississippi prohibits athletes from receiving NIL compensation prior to enrollment in their first college class, whereas the current NCAA policy would allow for high school students to seek NIL compensation as early as their 9th grade year.12 On the other hand, New Mexico has some of the most lenient rules pertaining to NIL compensation. The state prohibits schools from terminating an athlete’s eligibility to participate or receive scholarships regarding any “food, shelter, medical expenses or insurance from a third party.” The state further prohibits schools from interfering with a student-athlete’s choice of footwear during any mandatory team activity.13
There are many questions left unanswered without a national policy in place from the NCAA or Congress. Will athlete’s still be subject to exploitation of their schools when most of the state laws leave determining acceptable commercial conduct up to the school’s own internal policy? How will school’s handle licensing issues where athletes appear in advertisements or promotions with their logos and insignia? Will athlete’s have their NIL earnings be capped or confined to monetary compensation, and is that even lawful under antitrust laws? Nevertheless, athletes in these seven states may be able to sign endorsement deals in July so long as they are compliant with state law. However, it is expected that the NCAA will file suit against these states if they do not come up with a national policy plan beforehand.14 Regardless, this summer marks the start of a new era of collegiate athletics which will undoubtedly change the landscape of sport for athletes who have for decades had their talents and work exploited by the NCAA model.
¹ CAL. EDUC. CODE §§ 67456-57 (2019).
² Board of Governors starts process to enhance name, image and likeness opportunities, NCAA (October 29, 2019).
³ Dan Murphy, NCAA group supports player endorsement plan, ESPN (April 29, 2020).
4 Taking Action–Name, Image, and Likeness, NCAA (2021).
5 Murphy, supra note 3.
6 Steve Berkowitz et. al., DOJ critical of NCAA’s view of antitrust compliance; association president Mark Emmert wants voting delay on rules proposals, USA Today (January 9, 2021).
7 Id.
8 Dan Murphy, Everything you need to know about the NCAA’s NIL debate, ESPN (May 24, 2021).
9 Tracker: Name, Image and Likeness Legislation by State, Business of College Sports (June 2, 2021).
10 Murphy, supra note 8.
11 Steve Berkowitz, Name, image and likeness laws vary by state. A closer look at those going into effect July 1., USA Today (May 28, 2021).
12 Id.
13 Id.
14 Murphy, supra note 8.
Cole Baker is a summer intern with IIPSJ. He is a rising 2L at the University of Maryland Francis King Carey School of Law.
For more on this topic, check out these posts:
Video: Right of Publicity Update
NCAA’s Proposed NIL Regulations Are an Antitrust Violation Waiting to Happen
Recent Name/Image/Likeness Legislation Will Change the NCAA (or Not)
The California Fair Pay to Play Act- Finally IP Social Justice for Student Athletes
Blog Post On The IDEA Act
THE INVENTOR DIVERSITY FOR ECONOMIC ADVANCEMENT (IDEA) ACT OF 2021
Senator Mazie K. Hirono (D-Hawaii), Senator Thom Tillis (R-N.C.), Congresswoman Nydia M. Velázquez (D-N.Y.), and Congressman Steve Stivers (R-Ohio) re-introduced the Inventor Diversity for Economic Advancement (“IDEA”) Act in March 2021 to ensure equal access to the U.S innovation system.
Tillis cited several studies that show women and minorities apply and obtain patents at lower rates than male white counterparts. In fact, women make up only 13% of inventors, and Black and Hispanic graduates apply for patents at half the rate of White graduates.
To address these discrepancies, the IDEA Act would direct the USPTO to collect demographic information from patent applicants voluntarily. It also requires the USPTO to make the data publicly available in addition to reports on the data. This will help other researchers analyze the issue and offer solutions to the problem. The proposal now awaits judiciary committee review.
Data collection is the first step to identifying areas of change. You can access the text to the legislation here.
For more on this topic, check out these posts:
IIPSJ’s Comments to USPTO on strategy for National Council for Expanding American Innovation
Blog Post On The SUCCESS Act
THE SUCCESS ACT: WHERE WE STAND & THE PATH FORWARD
In this post, Brittany Amadi and Gary M. Fox outline the goals and findings of Congress’ SUCCESS Act and expose the correlation between lack of diverse inventors and lack of diversity within the STEM field.
The SUCCESS Act was intended to address racial and gender disparity in USPTO applications by requiring the government to conduct a study on applications submitted by and patents issued to women, minorities, and veterans. Later on in October 2019, the bleak findings were made public and the USPTO carried on with five recommendations to address the disappointing report, which Amadi and Fox draw out in this post.
But Amadi and Fox also suggest that, while good starting points, the Act and the following recommendations fail to address the root of the problem. They argue that it is only and until we tackle the underrepresentation of women and minorities in the STEM field during the earlier stages of intellectual development that we can mitigate discrepancies of underrepresentation in inventorship.
For more on this topic, check out these posts:
IIPSJ’s Comments to USPTO on strategy for National Council for Expanding American Innovation
Blog Post On NIL and Antitrust
NCAA’s Proposed NIL Regulations Are an Antitrust Violation Waiting to Happen
by Ronald S. Katz
The NCAA is no stranger to antitrust violations. Defendant in a landmark U.S. Supreme Court antitrust case in 1984, the NCAA has been on the wrong side of two Ninth Circuit decisions in the past five years (a blink of the eye in antitrust time). That record of recidivism, however, has not stopped the NCAA from, once again, ignoring the free market and proposing new regulations (“Proposal”) on the sale of the names, images and likenesses of college athletes. The Proposal, not surprisingly, runs afoul of those earlier court decisions.
Names, images and likenesses have been sold since time immemorial in a free market. Of course, in a free market, these transactions are confidential. How much someone is being paid for a name, image or likeness is clearly competitively sensitive information.
Such confidentiality will not exist in the contracts of college athletes, however. According to the NCAA’s October 14, 2020 press release on the Proposal, “student-athletes would be required to disclose name, image and likeness activities including compensation arrangements and details of relationships developed through the process.” Such disclosures would be made to what the press release calls “a third-party administrator.”
Also, a free market enables competitors to deal with whom they please. According to the press release, however, there will be significant restrictions on the college athletes. First, they cannot “particpate in activities involving a commercial product or service that conflicts with NCAA legislation (such as sports wagering or banned substances) … ” However, sports betting and so-called banned substances like cannabis are, of course, legal in many states.
More ominously, according to the press release, “schools would have the opportunity to prohibit activities that conflict with school values or existing sponsorship arrangements.” Because many of the schools have sponsorship arrangements with major sports equipment/apparel companies like Nike and Adidas, this is a significant curtailment of competition. As for “school values,” this hopelessly vague phrase has the potential of blotting out all NIL activity by college athletes.
Measuring the Proposal against the major antitrust cases lost by the NCAA paints a clear picture of antitrust violations on the horizon. The 1984 U.S. Supreme Court case, for example, NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), involved the NCAA’s policy of curtailing the number of football games a school could televise, much as the Proposal curtails the quantity of names, images and likenesses that a college athlete can sell.
The Supreme Court’s holding was foursquare against the NCAA: “that the record supports the District Court’s conclusion that, by curtailing output and blunting the ability of member institutions to respond to consumer preference, the NCAA has restricted, rather than enhanced, the place of intercollegiate athletics in the Nation’s life. Accordingly, the judgment of the Court of Appeals [against the NCAA] is Affirmed.”
The Proposal does not fare any better under the 2015 Ninth Circuit case, 0 ‘Bannon v. National Collegiate Athletic Association, 802 F.3d 1049 (20!5). That case involved paying athletes for their names, images and likenesses, which was completely forbidden at that time.
The Ninth Circuit held that higher educational institutions were prohibited from preventing such payments up to the cost of attendance at an institution of higher education: “In this case, the NCAA’s rules have been more restrictive than necessary to maintain its tradition of amateurism in support of the college sports market. The Rule of Reason [of the Sherman Antitrust Act] requires that the NCAA permit its schools to provide up to the cost of attendance to their student athletes.”
The Proposal also does not meet the standards of the 2020 Ninth Circuit case, In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, No. 19-15566 (May 18, 2020). That case involved paying athletes for education-related expenses. The Ninth Circuit opinion prohibited the NCAA member schools “from enforcing rules that restrict the education-related expenses that its member institutions may offer students who play Football Bowl Subdivision football and Division I basketball.” Again, the Ninth Circuit’s holding was crystal clear: “the district court properly concluded that NCAA limits on education-related benefits do not ‘play by the Sherman Act’s rules.”‘
Based on the above, the Proposal, if it is enacted by the NCAA, will violate the antitrust laws. As Senator Richard Blumenthal of Connecticut was quoted in the November 14, 2020 issue of USA Today, the Proposal was “functionally useless” and “will do little to change the current exploitive state of college athletics.”
Ron Katz is a Senior Counsel at GCA Law Partners LLP in Mountain View, California. A co-author of the textbook Sport, Ethics and Leadership (Routledge, 2017), he will be speaking on the subject covered above at the 2021 IP and Social Justice CLE this coming March 5.
For more on this topic, check out these posts:
Recent Name/Image/Likeness Legislation Will Change the NCAA (or Not)
The California Fair Pay to Play Act- Finally IP Social Justice for Student Athletes