• Professor Edward Lee

    Edward Lee

    Professor of Law and Director of the Program in Intellectual Property Law

    – Go to his faculty biography

    – Go to his publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/edward_lee1/

    New Lee Article: Empirical Study on “Patent Trolls” in Media

    by  • April 27, 2016 • Scholarship • 0 Comments

    Professor Edward Lee, Director of the Program in Intellectual Property Law, has authored a new article titled “Patent Trolls: Moral Panics, Motions in Limine, and Patent Reform.” The article is forthcoming in Stanford Technology Law Review, Vol. 19, 2016.

    Abstract:

    This Article provides the first empirical study of the use of the term “patent troll” by U.S. media-specifically, examining leading newspapers and online publications. The study offers several key findings: (1) First, starting in 2006, the U.S. media surveyed used “patent troll” far more than any other term, despite the efforts of scholars to devise alternative, more neutral-sounding terms. The tipping point was the combination of the controversial Blackberry and eBay patent cases in 2006 — prior to that time, “patent holding company” was the most popular term. (2) Second, the media more often portrayed such patent entities in a one-sided, negative light with very little analysis or empirical support. For example, few works provided statistics or discussion of any studies to support their negative portrayal. Practically no articles mentioned the lack of a working requirement in U.S. patent law, which permits all patentees not to practice their inventions. These findings provide support for the recent judicial decisions that have barred, at trial, the use of the term “patent troll” as unfairly prejudicial.

    Download the paper on SSRN here.

    Predicting the Winners in Integrity Staffing Solutions v. Busk and Warger v. Shauers

    by  • October 8, 2014 • Faculty Commentary • 0 Comments

    By Edward Lee [reposted from ISCOTUSnow]


    The Supreme Court heard oral argument in two cases on Wednesday, October 8, in the first week of the October 2014 Term. As I hope to do all Term, I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. It’s well established that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

    Integrity Staffing Solutions, Inc. v. Busk presents the question whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. My prediction is that the Petitioner Integrity Staffing Solutions will win. The Respondent Busk received almost twice as many questions as the Petitioner (51 to 27 questions), and 11 more questions than even the total number of questions for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Integrity Staffing Solutions (which argued that the time spent in security screenings is not compensable under the FLSA).

    Figure 1.

    Lee - 10.8.14 Integrity Staffing v Busk questions

    The second case, Warger v. Shauers, raises the issue whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

    This is an easy case to predict, given the large disparity in the number of questions asked to the parties. The Petitioner Warger received more than twice as many questions than the Respondent and U.S. Solicitor General (who supported the Respondent’s position) combined (31 to 13 questions). The attorney for the Solicitor General’s Office in fact received no questions at all—a rarity during oral arguments. The huge disparity in the number of questions points to a victory for the Respondent Shauers (who argued that Rule 606(b) precludes evidence of juror testimony about statements made during jury deliberations even if it relates to juror dishonesty).

    Figure 2.

    Lee - 10.8.14 Warger v Shauers questions

    Predicting the Winners in Holt v. Hobbs and Dart Cherokee Co. v. Owens

    by  • October 8, 2014 • Faculty Commentary • 0 Comments

    By Edward Lee [reposted from ISCOTUSnow]


    The Supreme Court heard oral argument in two cases on October 7, 2014. I’m predicting the winners of the cases based on the method of question counting—i.e., the advocate that receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

    The first case may be too close to call. In Dart Cherokee Basin Operating Company, LLC v. Owens, the Court considered whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.” The Petitioner Dart Cherokee received 48 questions, three fewer than the Respondent Owens, who received 51 questions. The total question count is favorable to the Petitioner. But if you look at the questions per Justice, five of the Justices (Roberts, Scalia, Kennedy, Sotomayor, and Kagan) asked more questions to the Petitioner. Three other Justices (Ginsburg, Breyer, and Alito) asked more questions to the Respondent.   The individual question count by Justice might suggest a favorable outcome for the Respondent. This case is a toss-up.

    Figure 1.

     Lee - 10.8.14 Dart Cherokee v Owens questions

    The second case is easier to predict. In Holt v. Hobbs, the Court considered whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs. The Respondent Hobbs, Director of the Arkansas Department of Corrections, received twice as many questions (52) as the Petitioner (23)—and seven more questions than the total number for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Holt.

    Figure 2.

    Lee - 10.8.14 Holt v Hobbs questions

     

    Heien v. North Carolina—Predicting the Winner Based on the Oral Argument

    by  • October 6, 2014 • Faculty Commentary • 2 Comments

    By Edward Lee


    The Supreme Court opened its October 2014 Term by hearing oral argument in Heien v. North Carolina, which raises the question: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop?

    I am using the same method of predicting the winner of the case that I have used before, which is based simply on the total number of questions each party receives. Other scholars have shown that the more questions an advocate receives during oral argument before the Supreme Court, the more likely the advocate will lose the case. For more about this method, see my post on last Term’s Aereo case.

    Figure 1.

    Lee - 10.6.14 Heien v North Carolina questions

     

    In this case, we have the confounding factor of the Solicitor General’s participation on the side of the Respondent. The participation of the SG is confounding in two respects: (1) it decreases the time the party whose side it supports has during the oral argument (usually by 10 minutes), thus decreasing the time the party is questioned and increasing the likelihood the party will receive fewer questions than the opposing party, who is questioned for the full 30 minutes; and (2) the Supreme Court often ends up agreeing with the side that the SG supports.

    I also should mention that I am not an expert in Fourth Amendment law and have not studied the Court’s jurisprudence in this area (at least not since law school).

    With those caveats in mind, my prediction is that the Supreme Court will side with the State of North Carolina, which received eleven fewer questions than the Petitioner. However, the disparity of questions between both parties is not large, so my confidence level in the prediction is not very great. From my analysis of last year’s IP cases, the predictive value of the question-counting method appeared to work best when the disparity of questions between the parties was great (excluding the SG’s participation). If we calculate the questions asked per minute to each party, the Respondent North Carolina actually had the higher rate of questioning (1.55 questions per minute versus 1.4 questions per minute for the Petitioner).

    As the Term progresses, I hope to refine the method, especially in cases in which the SG participates. But for now, my prediction in this case will be for North Carolina.

    Limelight v. Akamai—Analysis and Prediction

    by  • April 30, 2014 • Faculty Commentary • 0 Comments

    Blog post by Prof. Christi Guerrini, IP Fellow
    Prediction by Prof. Edward Lee


    On April 30, the Supreme Court heard oral argument in Limelight Networks v. Akamai Technologies, a case involving the thorny issue of “divided” patent infringement—specifically, whether a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under Section 271(a). The Court’s decision is likely to have important implications for developers of distributed systems and method innovations that are typically executed by multiple independent persons. For example, patents on Internet services and business methods may involve some steps of the patented method that are performed by the technology company and other steps performed by customers.

    Predicting the Winner: A Win for Akamai?

    In a prior post, I explained the method by which I am predicting the winners of the case based on counting up the number of questions during oral argument. The side that receives more questions from the Justices typically is on the losing end of the decision. Using that method, Akamai might get a slight edge to win the case. As depicted in Figures 1 and 2 below, 5 justices asked Limelight’s attorney more questions, and, when coupled with the questions to the U.S. government (as amicus curiae supporting Limelight’s side), the Justices asked 16 more questions to Limelight’s side, 45 questions to only 29 questions to Akamai. Those numbers suggest a win for Akamai based on this method.

    However, I am not too confident in this prediction. The Justices did in fact ask the same number of questions to both parties (29)—which suggests a closer call. As I’ve noted in the prior post, the presence of an attorney for a non-party (an amicus) may skew the numbers somewhat if the Justices feel obliged to ask every attorney some questions. Plus, the U.S. government’s position may confound the conventional analysis of the number of questions. In a different case just decided this week, Octane Fitness, LLC v. ICON Health & Fitness, Inc., the number of questions was quite similar to this case, but it defied the pattern described above. In Octane, there was an even split of questions between the parties (31), plus a differential of 51 questions for petitioner’s side (adding in the U.S. government as amicus curiae) to 31 questions for the respondent’s side. But the Supreme Court ultimately decided in favor of the petitioner, despite its side receiving the greater number of questions. The Octane case suggests that the questions in Limelight may defy the conventional pattern—which would bode well for Limelight.

    Figure 1. Number of Questions in Limelight Networks v. Akamai Technologies

    Lee Limelight Figure 1 (more…)

    The Nautilus Case—and Prediction

    by  • April 28, 2014 • Faculty Commentary • 0 Comments

    Blog post by Prof. Christi Guerrini, IP Fellow
    Prediction by Prof. Edward Lee


    On April 28, the Supreme Court heard oral arguments in Nautilus, Inc. v. Biosig Instruments, Inc., a case that will potentially have major implications for patent drafting practices, patent litigation, and businesses. The case centers on the requirement in Section 112 of the Patent Code, which requires patentees to describe their patent claims with sufficient “definiteness.”

    Predicting the Winner: Reversal of the Federal Circuit’s Decision

    In a prior post, I explained the method by which I am predicting the winners of the case based on counting up the number of questions during oral argument. The side that receives more questions from the Justices typically is on the losing end of the decision. Using that method, the petitioner Nautilus’s side (asking for reversal of the Federal Circuit’s decision) should prevail.  The Court asked nearly twice as many questions to the respondent Biosig’s side (including the U.S. government as amicus curiae supporting Biosig).  The count was only 36 questions for Nautilus’s side to 68 questions for Biosig’s side.

    Figure 1. Number of Questions in the Nautilus v. Biosig Instruments Case

    Lee Nautilus Chart 1 (more…)

    The Aereo Case—and Prediction

    by  • April 23, 2014 • Faculty Commentary • 14 Comments

    By Edward Lee [reposted from ISCOTUSnow]


    On April 22, the Supreme Court heard oral argument in an important copyright case involving Aereo, an Internet TV service from Brooklyn that has the financial backing of media mogul Barry Diller. The case has received a lot of media attention because it pits a disruptive Internet startup against the old-line broadcast TV networks. But it also has the potential to transform the cable industry and the way in which people watch TV.

    Predicting the winner: A Win for Aereo?

    If you want to learn more about the facts and legal issue in the case, jump to the analysis below. Right now, I’m going to cut to the chase and predict a winner. Of course, every appellate attorney knows that predicting the outcome of a Supreme Court case based on how the oral went is perilous, if not foolhardy. But Judge Richard Posner and Professors Lee Epstein and William Landes have analyzed a simple—yet statistically significant—method of identifying the likely winner of a Supreme Court case based on the number of questions the lawyers receive during oral argument. In a nutshell, the party that receives the most questions from the Justices during oral argument is more likely to lose. See Lee Epstein, William M. Landes, & Richard A. Posner, Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument, 39 J. Legal Stud. 433 (2010). Prior studies by others found similar results. Id. at 434 n.1 (citing Shullman, Wrightsman, and Johnson et al.). Even Chief Justice John Roberts arrived at the same conclusion based on his own study of 28 cases. Id.

    Based on this crude method of counting up questions, my prediction is that Aereo will win the case. Aereo’s attorney received fewer questions during oral argument than the total questions asked of the opposing side (the attorney for TV networks and the attorney for U.S. government combined): 26 questions for Aereo, and 31 questions for the TV networks and U.S. government. But I’m not as confident in my prediction. Two lawyers represented the side of ABC, whereas Aereo had only one lawyer. If you look just at the lawyers for each party, ABC’s lawyer actually had fewer questions, 23 for ABC to 26 for Aereo. The total number of questions for ABC’s side (including the U.S. government) might be inflated if, for example, the Justices feel obliged to ask each attorney some questions (in which case ABC’s side would have received some extra questions that it wouldn’t have received if only one attorney represented its side at oral argument). Moreover, examining each Justice’s number of questions yields an even 4-4 split: Roberts, Ginsburg, Scalia, and Kennedy asked more questions to Aereo’s side, while Alito, Breyer, Kagan, and Sotomayor asked more questions to ABC’s side.  Thomas, as his custom, didn’t ask any questions.  Add in the complicating factor that Justice Kennedy’s past voting in cases did not follow the basic pattern of asking the losing side more questions.  Id. He’s a swing vote that defies the basic pattern.  So, based on the number of questions, we expect a 5-4 or 6-3 decision, but picking the winner might be too close to call. (more…)

    Golan v. Holder: Supreme Court to Review Copyrighting Works in Public Domain

    by  • March 9, 2011 • Faculty Commentary • 0 Comments

    By Edward Lee [via Huffington Post]


    One of the most valuable lessons I learned as a lawyer I learned from, of all people, a musician. Richard Kapp was his name and orchestral conducting, his lifelong profession and passion. A renowned conductor in New York and producer of acclaimed recordings of Shostakovich’s String Quartets, Kapp was the first person who volunteered to challenge an obscure “copyright restoration” law in a case I helped to start while at the Stanford Center for Internet and Society. From day one, Kapp, who held a law degree from New York University, impressed me with his unflagging commitment to standing up for what he believed was right. So committed to the case was Kapp, he later refused to diminish his involvement despite being diagnosed with cancer and undergoing a battery of treatment. Not even cancer could stop Kapp, then 67 years old, from sitting hours for a deposition to preserve his testimony in the case.

    Kapp did not live to see his case decided, but, this week, his case took a major step forward. The Supreme Court agreed to hear the constitutional challenge he — along with Lawrence Golan, a professor and conductor at University of Denver, and others — raised.

    So what does the challenge concern? At bottom, it concerns freedom of expression and the right of the American people to use materials in the public domain — without fear the government will remove or restrict them from public use.

    In 1994, Congress enacted the “copyright restoration” provision as a part of legislation, the Uruguay Round Agreements Act, putatively intended by the Clinton Administration and Congress to carry out trade obligations of the U.S. after the formation of the World Trade Organization. The provision grants new copyrights to many old foreign works — at least 50,000 in number, although probably many more — that had been in the public domain in the United States, potentially dating back for decades. By granting these old works (some created in the 1920s) “restored copyrights” in 1994, Congress effectively traded away the American public’s rights of free expression to these public domain materials, in exchange for the private interests of copyright holders and the heirs of foreign authors to reclaim copyrights. (more…)