In the News

Peter Menell in the news:

Six things to watch as Cisco, Arista head to trial over IP

Peter Menell quoted by The Recorder (registration required), Nov. 23, 2016

Berkeley Law professor Peter Menell writes in a recent scholarly article that Freeman faces a dilemma: “whether to follow the Ninth Circuit’s jurisprudence or the Federal Circuit’s interpretation of the Ninth Circuit’s jurisprudence.”

DoJ weighs in on Apple, Samsung patent litigation

Peter S. Menell quoted by Northern California Record, June 28, 2016

“Bottom line: The Supreme Court granted certiorari on the wrong issue,” Menell said. “It should have reviewed the functionality defense.”

How Oracle went from nine zeros to one zero

Peter Menell interviewed by The Recorder (registration required) May 27, 2016

“Declaring code is not poetry,” he said. Menell said he expects the jury’s verdict to remain intact in the face of post-trial motions and a potential appeal. “I just think it is going to be very surprising to have this completely reversed in any sense,” Menell said.

Steal this riff: How to fix copyright law and set musicians free

Peter Menell quoted by MTV, May 25, 2016

“My proposal would somewhat be a shock to the system,” says Menell. “…We live in a country with very strong free-expression values. So I think what we ought to be focused on is trying to support the artist — both the original artist and those who build on their work. That’s just part of the kind of freedom that has been central to our entertainment industries.”

Federal Defend Trade Secrets Act clears the Senate: Is the uniform act on life support?

Peter Menell quoted in Lexology, April 11, 2016

Of critical importance to several senators was the thoughtful consideration of the interplay between trade secret protection and illegal activity unearthed by employees. As noted by Professor Peter Menell of the UC Berkeley School of Law, “[t]he same routine non-disclosure agreements that are essential to safeguarding trade secrets can be and are used to chill those in the best position to reveal illegal activity.”

New federal trade secret law would protect whistleblowers

Peter Menell cited on, Feb. 5, 2016

As Professor Menell explains, studies show that whistleblowers frequently suffer job loss or demotion, personal shunning or blacklisting. This affects their finances, their families and their health.

What you need to know about the amended Defend Trade Secrets Act

Peter Menell paper cited in Patently-O, Jan. 31, 2016

“The same routine non-disclosure agreements that are essential to safeguarding trade secrets can be and are used to chill those in the best position to reveal illegal activity.”

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.”