In the News


Peter Menell in the news:



Worried biotech advocates swarm to prenatal testing fight

Peter Menell cited in The Recorder (registration required), August 27, 2015

“There is serious risk that failure to engage this issue at this juncture could set the patent system on a dire course,” say UC-Berkeley Law professor Peter Menell and UC-Hastings’ Jeffrey Lefstin in an amicus curiae brief filed Thursday.


The next generation of patent claim construction

Peter Menell writes for Daily Journal, February 3, 2015

The court removed interpretation of patent claims from the black box of jury deliberations by holding that the Seventh Amendment jury trial right did not extend to patent claim construction and that trial judges were better equipped than juries to resolve the mixed fact/law controversies inherent in construing disputed patent claim terms.


Supreme Court trims federal appeals court’s authority in patent cases

Peter Menell quoted in Daily Journal (registration required), January 21, 2015

“This decision creates a clear pathway for better information to enter the record in patent cases and for more sound claim construction decisions,” Menell said. “Many district judges have not taken expert testimony on the record, nor have they provided detailed explanations for why they construe a claim one way or another.”


Patent claim construction and distrust

Peter Menell writes for the Daily Journal (registration required), November 14, 2014

The Teva case poses a fundamental question going to the heart of the American justice system. Should factual determinations underlying patent claim construction be subject to substantially less deference (or more distrust) than the factual determinations made in every other area of federal adjudication?


Symposium: Aereo, disruptive technology, and statutory interpretation

Peter Menell and David Nimmer write for Scotus Blog, June 26, 2014

No one should be entirely satisfied with where the Supreme Court’s resolution of this case leaves the larger policy determination. The Copyright Act of 1976 is indeed creaky. While its drafters enunciated purposes and principles that have guided the evolution of copyright protection, we are nearly half a century beyond those drafting choices. Thus, while we commend the Supreme Court’s faithful execution of its Constitutional role, we nonetheless believe that the time is ripe to consider how best to reform the Copyright Act for the current technological age.


Much ado about copyright’s ‘making available’ right

Peter Menell writes for The Media Institute, May 9, 2014

Concern over outsize statutory damage awards in file-sharing and user-generated content platform cases has distorted statutory interpretation of other provisions of the Copyright Act and contributed to growing public disdain and disregard for the copyright system.


Copyright experts side with broadcasters in Aereo fight

Peter Menell cited in Los Angeles Times, March 4, 2014

In a brief filed at the Supreme Court, UCLA School of Law professor David Nimmer and Peter Menell, a professor at the UC Berkeley School of Law, warned that if Aereo were found to be legal it could “decimate multiple industries.”


Commerce department holds meeting to discuss Internet task force green paper

Peter Menell quoted in Bloomberg BNA, December 20, 2013 (registration required)

Peter Menell…. urged stakeholders to keep the big picture in mind and to think about how the current statutory damages provisions help or inhibit enforcement efforts…. “In the Internet age, we want a copyright system that garners public approval,” Menell said. “And I think that is something that has been lost, and statutory damages played a very significant role” in the erosion of public support, he said.


Pandora’s price

Peter Menell, quoted in East Bay Express, December 18, 2013

Peter Menell … noted that musicians have often been pushed aside in these debates. “Artists are an underrepresented part of the ecosystem,” he said. “They are now starting to speak up.”


Scholar joins scrum on claims construction standard

Peter Menell cited in The Recorder, July 2, 2013

Cybor, Menell wrote in Monday’s filing, has “undermined the transparency of the claim construction process” and “produced alarming levels of appellate reversals.” Rather than fostering predictability, the Cybor dynamic has “discouraged settlements following claim construction and trial, delayed resolution of patent disputes, and run up the overall costs of patent litigation.”


Claim construction Catch-22: why the Supreme Court should grant certiorari in retractable technologies

Peter Menell and Jonas Anderson write for Patently-O, December 5, 2012

In its filing last week, the Solicitor General has unfortunately recommended against Supreme Court review principally on the ground that Retractable Technologies is not an “appropriate vehicle” because the district court did not specifically rely upon factual findings. Therein lies the Catch-22. No district court since at least the Federal Circuit’s 1998 en banc Cybor ruling has been willing to make factual findings in construing patent claims for the pragmatic, logical, and legal reason that to do so would contradict Federal Circuit law that claim construction is a pure question of law.


Google, PageRank, and symbiotic technological change

Peter Menell writes for The Media Institute, August 24, 2012

Technological change is rarely without downside risks; nor is it uni-dimensional. Society does not just want automobiles; we want safe, non-polluting automobiles. Similarly with respect to information dissemination technologies, the proper framing should recognize society’s multi-faceted interest in promoting technological advance, expressive creativity, and freedom of expression.


Suits against IP firms raise “fair use” questions

Peter Menell quoted in InsideCounsel, April 30, 2012

“The model for publication is shifting. This looks like an effort by publishers to squeeze some more juice out of the lemon,” says Prof. Peter Menell…. “It sounds like publishers see this as a new revenue stream. There are a half-million patent applications per year, and they figure they can make some money here.”


Peter Menell Criticizes Music Service ‘Grooveshark’

The Media Institute, December 21, 2011 by Peter S. Menell, Herman Phleger
and Robert L. Bridges
http://www.mediainstitute.org/new_site/IPI/2011/122111.php

As deals with iTunes, Amazon, Rhapsody, MOG, Rdio, and Spotify attest, the major record labels are now willing to license their content to a wide range of download and streaming services. Yet these businesses are hobbled by competing with Grooveshark and other enterprises that abuse the DMCA safe harbor.


Peter Menell Moderates Patent Debate

InformationWeek, February 18, 2011 by Charles Babcock
http://bit.ly/eNImJH

A member of the audience suggested that the recent decision in the Bilski vs. Kappos case by the U.S. Supreme Court resolved the software patent issue in favor of more restricted software patents. But Professor Menell disagreed. It was argued on a basis of business processes, not software, and resolved nothing, he said.


Peter Menell Assesses DMCA Safe Harbor Provision

The Media Institute, August 31, 2010 by Peter Menell
http://www.mediainstitute.org/new_site/IPI/2010/090110.php

So that brings me to the “ugly”: the inability of just about everyone with a stake in this debate to discuss the growing pains, shortcomings, and anachronisms of the DMCA safe harbors forthrightly. As reflected in the views of our industry panelists, the DMCA safe harbors are either perfect and prescient or dysfunctional…. It should have been clear to everyone on the panel that neither Web 2.0 nor peer-to-peer technology were even on Congress’s radar when it passed the DMCA, and that the statute is not well-crafted to confront the modern challenges.


Peter Menell Debates Need for Copyright Law Reform

BroadbandBreakfast.com, July 2, 2010 by David Cup
http://broadbandbreakfast.com/2010/07/experts-debate-need-for-new-digital-copyright-law/

“We’re seeing an evolution in this sector,” said Menell. However, when innovators see “policy” or “legal” they immediately think “stifling innovation.” Menell said this sort of thing happens all the time, and is in fact good for the industry. “We chill innovation in automobiles all the time because we not only care about speed, but also about the safety,” countered Menell.


Peter Menell Says China Is Software Piracy Haven

San Francisco Chronicle, May 24, 2010 by Bloomberg News
http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2010/05/24/bloomberg1376-L2YCGV1A74E9-1.DTL

“China is denying that they are a piracy haven but that’s contrary to a tremendous amount of empirical research,” Peter Menell, director of the University of California at Berkeley’s Center for Law and Technology, said by phone. “You don’t really have effective enforcement rules. If China was manufacturing software, they would have a bigger incentive to clamp down.”


Peter Menell Debunks Tenenbaum’s Claim of File-Sharing as Social Movement

The Media Institute, February 17, 2010 by Peter Menell
http://www.mediainstitute.org/new_site/IPI/021710_FileSharingCopyrighted.php

This painful chapter in the transition to digital distribution reveals that although Joel Tenenbaum may have shared “Rosa Parks,” he is no Rosa Parks.  His defense team’s choice to employ the rhetoric of social-justice movements devalues other, legitimate social movements, misleads the public, and obscures the critical legal issues of his and analogous cases—the scope of copyright’s distribution right and how statutory damages should be applied in file-sharing cases.


Peter Menell Supports District Court Judge Appointment to Federal Circuit

The Recorder, January 4, 2010 by Zusha Elinson
http://www.law.com/jsp/article.jsp?id=1202437343598&pos=ataglance&hbxlogin=1

“I think there is widespread support for bringing a district court judge with patent experience,” said Peter Menell, a professor at Berkeley Law who specializes in intellectual property.