C4i Annual Report 2023

Center for Innovation at UC Law

2022-2023 ANNUAL REPORT

C4i Director Professor Robin Feldman

Above: Anu Lingappa, SLG 2020-2021 Alumna and 2023 NIH award-winner for her project, “One Drug for All Cancers"

MESSAGE FROM THE DIRECTOR Robin Feldman

This was a banner year for C4i, which has been at the center of legal and policy developments in Intellectual Property Law, innovation, and competition.

C4i's flagship program, Startup Legal Garage, provides students with hands-on legal experience and startups with free legal advice It was an award-winning year for the program, which received two awards one from Bloomberg's Law School Innovation Program and the other from the American Legal Technology Awards Our alumna from our 2020-2021 program won an NIH contest for her work on "One Drug for All Cancers"

With policymakers focused on pharmaceutical pricing, AI, and industry concentration, I have been privileged to provide testimony or technical advice to congressional committees, federal agencies and other government officials roughly 50 times in the last year. Of particular note, I have given high-level technical advice to the state of California for its project to produce low-cost insulin and other generic drugs. Press commentary has been hopping as well, and I gave about 150 press interviews over the year.

The work of C4i's Law and Medicine Initiative received its own awards, as it investigates issues relevant to policymakers and the courts "Atomistic Antitrust" , a law review article that envisions better ways of addressing anticompetitive consolidation of markets, received two awards for outstanding writing in antitrust "Lochner Revenant" argued for a narrow interpretation of the dormant Commerce Clause's "extraterritoriality principle," followed by a Supreme Court decision that largely upheld our interpretation Also timely, "Patents as Property for the Takings" appeared in print one month before organizations began challenging the Inflation Reduction Act’s Medicare negotiations To continue its work, C4i has been awarded a record $2.1 million in grant funding in 2023.

In all things, C4i strives to advance better understanding of the law and increased access to the information needed by courts, commentators, and policymakers. I look forward to your joining in the mission!

Right: Professor Feldman was invited to the White House for a celebration of the Inflation Reduction Act upon its passage.

CENTER FOR INNOVATION Mission Statement

"More than a think tank, C4i is an action tank invested in identifying implementable solutions to today’s problems."

Research initiatives and classroom components are integral to the Center as it identifies and advances the knowledge, tools, and skills necessary to foster innovation in the practice and development of law and policy, and in legal education "

The Center for Innovation (C4i) at UC Law features three dynamic initiatives: the Startup Legal Garage; the Law & Medicine Initiative; and the AI, Data, and Capital Markets Initiative.

STAFF & AFFILIATES

Startup Legal Garage (SLG) provides startups with free legal advice and UC Law students with hands-on legal experience while supervised by attorneys from the area ’ s leading law firms, creating win-win-win experiences for all participants.

The Law & Medicine Initiative (LMI) empowers policymakers, stakeholders, and regulators to make informed, evidence-based decisions at the intersection of intellectual property law and medicine

The AI, Data, and Capital Markets Initiative is shaping the next generation of legal and policy frameworks to protect the public interest.

Center Leadership

Robin Feldman C4i Director

Paul Belonick SLG Director, C4i Assistant Director

Gideon Schor LMI Director Ramy Alsaffar Senior Data Scientist

FEATURED RESEARCH 2022-2023

"Atomistic Antitrust" by Robin Feldman & Mark A. Lemley

William & Mary Law Review (2022)

Antitrust is atomistic: It pays attention to the consequences of individual acts alleged to be anticompetitive. But this focus is misplaced. The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms First, the focus on individual acts means that antitrust can't effectively deal with probabilistic competitive harm: multiple acts, any one of which might or might not harm competition. Second, atomistic antitrust tends to miss synergistic competitive harm: acts which are lawful when taken individually, but which combine together in an anticompetitive way.

Atomistic Antitrust has received two notable awards: Best Academic Article for the 2023 Antitrust Writing Awards and Best Antitrust Article of 2022 on Burdens of Proof for the Jerry S. Cohen Memorial Fund Writing Award for antitrust scholarship.

"Patents as Property for the Takings" by Robin Feldman

NYU JIPEL (2023)

The Takings Clause of the Fifth Amendment states, " nor shall private property be taken for public use, without just compensation.” But are patents private property? In May 2023, C4i published this article in the NYU Journal of Intellectual Property & Entertainment Law, arguing that from historical, textual, and other precedents, patents are not private property for the purposes of the 5th Amendment's Takings Clause

After years of constitutional research, this law review article was published just weeks before multiple lawsuits were filed attempting to use the Takings Clause infringement to challenge Medicare's power to negotiate drug prices, including those under patent

FEATURED RESEARCH 2022-2023

"Rewarding

Failure with Patents"

by Robin Feldman Yale Journal of Health Policy, Law, and Ethics

(Forthcoming)

Patents are not participation trophies Patents are granted on successful inventions, not on attempts that failed. Nevertheless, industry spokespeople and even policymakers often argue that the price of medicine and the return on a patent must compensate for failed research attempts on other drugs. This article argues that the Failure Compensation argument cannot be supported under patent law theory

In addition, from an historical perspective, examining the nation’s early patent statutes and cases reveals that the notion of compensation for failures is entirely absent.

Compensating for failures would also encourage inefficiency and lead to perverse results; the more you fail, the higher the compensation would be when you finally succeed.

STARTUP LEGAL GARAGE PROGRAM HIGHLIGHTS

As the flagship program of C4i, the Startup Legal Garage provides free legal services for early-stage technology and biotechnology startups through partnerships with incubators and law firms, In particular, the program supports women- and minority-owned businesses.

In 2022, SLG won recognition at the American Legal Technology Awards (runner-up, "Use of Technology in Legal Services") AND from Bloomberg’s Law School Innovation Program (a top-scoring department, "Innovation & Business")

Among others, SLG has worked with:

Caribou Biosciences: pioneered CRISPR technology; founded with the help of SLG law students. Founder Jennifer Doudna was awarded the Nobel Prize in Chemistry in 2020.

Black Girls Code: seeking to increase the number of women of color in the digital space by empowering girls of color ages 7 to 17 to become innovators in STEM fields, leaders in their communities, and builders of their own futures through exposure to computer science and technology Recognized by PC Magazine, NY Daily News, The Independent, CNET, Fortune, Newsweek, CNBC, Huffington Post, NPR, and USA Today.

Evolve Energy: helping consumers save their energy costs through AI and IOT.

ADDITIONAL OFFERINGS

FOR STEM STUDENTS

Synergizing with Startup Legal Garage, the UC Law Science & Technology Law Journal helps STEM students connect with peers and develop a base of contacts for a lifetime.

The Scientist to Lawyer program is an optional course for first year law students with graduate or undergraduate science degrees and is taught by tenured faculty

Innovation & Business

Tech. in Legal Services

LAW & MEDICINE INITIATIVE KEY WORKS

Drugs, Money, and Secret Handshakes

Drugs, Money, and Secret Handshakes unpacks the system of perverse incentives that delivers the kind of exorbitant drug prices and profits that everyone loves except for those who pay the bills.

Evergreen Drug Patent Database

C4i's 2018 article, "May Your Drug Price Be Evergreen" analyzed patents in the FDA's "Orange Book" of approved drugs a search through 160,000 data points to examine every instance where a company added a new patent or exclusivity.

The data have been made available as the Evergreen Drug Patent Database: https://sites uclawsf edu/ evergreensearch/about/

Lochner Revenant

by Robin Feldman & Gideon Schor NYIJournalofLaw&Liberty(2023)

During the Lochner era, the Supreme Court interpreted constitutional doctrine broadly to strike down scores of state statutes with an essentially free hand Today, some federal courts have been heading towards a new Lochner era, in which numerous state laws regulating health and safety can be invalidated on the thinnest of constitutional grounds.

Within a year of the article's publication, the Supreme Court's decision in NPPC v. Ross essentially applied the position C4i took in favor of narrowing the extraterritoriality principle.

"This is the book the pharmaceutical industry does not want you to read."

David Kessler, Former Commissioner, U.S. Food and Drug Administration

AI, Data, and Capital Markets Initiative POLICY DISCUSSIONS

USPTO Listening Session on AI Ownership of Intellectual Property:

How should patents work for AI-generated works?

This past April, the U.S. Patent & Trademark Office hosted a listening session on topics including whether the law should permit AI to be listed as an inventor or co-inventor of a patent?

As part of the AI, Data, & Capital Markets Initiative' s efforts to protect the public interest, Professor Feldman weighed in on the subject. Her testimony at the listening session highlighted three potential issues with patenting AI-generated inventions:

Timeline: A 20-year patent is an eternity for AI When it comes to the speed of change, AI travels in an entirely different dimension.

Transparency: Where the invention calls for a method patent for example, a method of using an AI to determine when a car hits the brakes, or whether an applicant will receive a loan—the limited disclosure norms in software patent law may not be enough To gain societal acceptance of AI, policymakers and the public will want someone to look under the hood.

Collective contribution to creativity: To the extent that AI systems are deriving their creative results, in part, through the collective decisions of numerous people, can the AI’s creativity be attributable solely to the program, or its operator, or its owner?

In this context, Professor Feldman argued that “both in terms of the incentives given to people by listing them as the inventor of a patent, and in terms of the susceptibility to deterrence presented by rights controlled by others, it is neither socially desirable nor entirely coherent to list AI on patents. ”

This testimony follows on from Professor Feldman's prior governmental activity and work related to Artificial Intelligence, including "Artificial Governance in the Financial Industry" (with former SEC Commissioner Kara Stein), "Artificial Intelligence: The Importance of Trust and Distrust," and "Competition at the Dawn of Artificial Intelligence."

Special Thanks

C4i Staff and Affiliates

Our Generous Supporters! (https://tinyurl.com/C4i-support)

The Endless Support of UC Law

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Website: www.uchastings.edu/academics/centers/center-for-innovation/

Email: feldmanr@uchastings edu

Twitter: @C4iUCLaw

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Website: www.startuplegalgarage.org

Email: startuplegalgarage@uchastings.edu

Twitter: @UCstartupgarage

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