Giachino (00:05.0090 - 00:27.0930)
Welcome to IP Protection Matters. I'm your host, Renee Giachino. Today, we are joined by Joshua Kresh, Executive Director of the IP Policy Institute (IPPI) at the University of Akron School of Law.
We'll be talking today about the critical importance of protecting intellectual property for the innovation ecosystem. Joshua, welcome to IP Protection Matters. Thanks for joining me.
Kresh (00:27.0930 - 00:29.0260)
Thank you, Renee.
Giachino (00:29.0659 - 00:38.0152)
Let's start with what is the obvious question for this podcast. In your opinion, why does IP protection matter?
Kresh (00:38.0623 - 01:45.0339)
Sure. In a lot of the industries we care about it is quite expensive to bring these innovations to market or to even invent, and without some kind of protection, it's very hard for companies to spend the money and resources to move things forward.
We can talk about specific industries. Life sciences is a really easy example, though not the only one where it might take a billion or two billion dollars to go and to bring a drug to market. To go through the approval process. It's relatively cheap and inexpensive to copy it afterwards. Maybe millions or tens of millions to get a generic. Or if you already have a factor even less than that it is pennies to make each pill. So, who's going to spend $2 billion to bring the drug to market and take that risk if someone can immediately copy it afterwards? We just wouldn't have innovation in that space.
Similarly, even in tech if you look at standards often there you have multiple companies spending years and significant resources on putting together a standard. If anyone could copy it without having some level of protection for it then no one would take the time and no one would also share and work together if you couldn't license and put deals together, which is much harder if there's no underlying protection.
Giachino (01:45.0669 - 01:57.0639)
That gets me to the work that you guys are doing at the Intellectual Property Policy Institute. Tell us a little bit more about the organization, your mission and why it is so relevant today.
Kresh (01:57.0760 - 02:31.0220)
Sure. We're an academic institute at the University of Akron School of Law that was started in March of this year. Though in many ways we can follow back quite a bit further as we're the same team that was running C-IP2 (Center for Intellectual Property x Innovation Policy) at George Mason and many of the same group that started CPIP (Center for the Protection of Intellectual Property) at George Mason about a decade ago, including Mark Schultz, who's my faculty director.
We study IP laws and innovation. We cover all major areas of IP, primarily patents, both tech and life science and copyright, though also to some extent trademarks and trade secrets. We do that from an academic view both as law professors and also as economists.
Giachino (02:31.0600 - 02:50.0029)
So then understanding the nuances of IP law and oftentimes the application thereof, it can be daunting. It's almost like reading and understanding the tax code, which I did in a prior life. Joshua, what excites you about the work that you are doing today?
Kresh (02:50.0320 - 03:16.0164)
I think we're on the verge and we're at the process of major jumps in technology, both in life sciences, healthcare, tech and with AI. A lot of that is being backed based on IP. I think the work we're doing to try to explain how the law works both to law professors and other lawyers, but also to the public, to Congress and others helps to move that forward. So I'm really excited about the potential for the future, and IP is a strong part of that.
Giachino (03:16.0565 - 03:42.0960)
Your audience for this scholarly work is much broader than just fellow academicians. As you said, this is information you're taking to legislators.
Have you got a real life story of something that you guys have been investigating, researching or following where the audience has been much broader than, oftentimes people will say, oh, we're just talking to each other. Well, no, that's not really what's happening in this space.
Kresh (03:43.0080 - 04:49.0739)
In general, we are law professors and economics professors. So we do write law review articles and economics articles. [There is] not a very big audience for most of those. A great article will have a few hundred people who read it. But we also will take those articles and we'll turn them into podcasts, blog posts and policy briefs. They are read by a much wider audience.
In the last year, and this was at C-IP2 before IPPI was set up, but we had five of our academics testify before Congress. We've had a few testify already this year and more coming up. People do read what we're putting out there and listen to it, and we do try to talk to a more general audience.
For example, Emily Morris, who's my life sciences lead, and I have done a podcast that was aimed at biotech professionals, not IP lawyers, but business people and CEOs. Many of whom at big companies will have large internal teams that understand this, but for small companies, they're relying on outside counsel and maybe don't have the internal knowledge. We try to give them a basis that helps them talk to their lawyers and think about when they actually have to go talk to their lawyers.
Giachino (04:50.0359 - 05:17.0359)
It sounds like a lot of the work that you're doing at IPPI is educational. I know that recently you convened a roundtable where you brought together some of these academic researchers and the industry representatives to address the critical intellectual property policy questions that have come up of late.
Can you share with us some of the comments or the efforts that have come from a gathering of that sort?
Kresh (05:17.0369 - 07:32.0255)
All of our our academic roundtables are Chatham House rules, so I can't go over specifics of what people said, but I can say that in each of our areas, we'll do at least one roundtable. Sometimes two every year that are a mix of industry and academics, which is relatively unusual.
Usually, industry talks to industry and academics talk to academics, and they don't really interact in the way that I think makes sense. The reason why we do those combined roundtables is that academics can have an ivory tower view of things. Sometimes we have theories which don't really hold up in practice and are missing data that's important.
By bringing industry in, we can kind of fact check and say, you know, we think things work this way, and we think these are changes that may be beneficial in industry and they might say, actually, you're missing these facts. Here's some data that would be helpful, and that can move the discussion. This isn't to say we always take industry exactly at their word or that we do what they say, but it is helpful to get those fact checks before something is published.
There are lots of studies that I've seen where I can just put things together without talking to industry and miss things. So, on the life science side, which is where I spent a good chunk of time, there have been some theories that are okay in practice on the first level, but they lead to significant assumptions that are often wrong and then lead to policy implications which don't make sense because the assumptions don't work.
One example there. Evergreening and thickets has been a pretty hot topic for the last decade plus. There are plenty of articles showing that biotech companies and big pharmaceutical companies will add additional patents to drugs after their initial release date. Those articles then suggest that they're extending the life of the protections on the product and that they're stopping generics from entering.
The articles are sort of right that patents are being added, but they're very wrong about what the actual outcome is. We've looked at and we have some studies published showing that the number of patents added and when they're added really doesn't affect generic entry. We can go into details as to why that is, but generics tend to be about 13.5 years after the brand enters. It doesn't really matter the number of patents again or if patents are added, often because additional patents filed later will lead to improvements on the drug. But you can still go enter a generic on the first drug. So without that discussion with industry about how does this actually affect things, we can lead to assumptions that don't make sense and then lead to implications that are probably not correct.
Giachino (07:32.0684 - 07:48.0299)
Joshua, I'm going to back you up a little bit. For those who are new to some of this terminology, can you just break down in layman’s terms, if it's possible, what is meant by evergreening? What is meant by thickets in this IP arena?
Kresh (07:48.0510 - 09:48.0424)
Evergreening is the idea that you can keep patents alive and therefore extend the life of the protections and stop generics from entering on a particular drug. It was an interesting theory, as I said. You can look at and often companies are continuing to research and make improvements to a product over time. This is something which is true across industries and generally we like. For example, Apple just released the iPhone 17. It has many improvements in new patents that weren't covered in the iPhone 16. No one seems to have a problem with that.
But in life sciences, there's this concern that by adding those patents, you can extend the life of a drug, keep charging the high price, stop generics from entering and somehow take advantage of the market. Turns out that's really not true, at least in a wide scale. We have studies on this, and other groups have done studies as well to show that those additional patents may provide additional protections, but they're not to the original base drug. A generic can still enter on the base. So it doesn't really stop the generics from entering. It doesn't cause the problems that people are concerned about.
Thickets is a bit more complicated because thickets are used or thicket arguments are being used both in tech patents and life science patents, and really has almost nothing to do with each other. On the tech side, the argument was you have dozens of companies with thousands of patents, and if you want to enter, you have to make a deal with all those companies and all those patents, and it becomes very, very hard. Therefore this stops people from entering the market.
Licensing seems to work, and there's plenty of evidence with lots of cell phone companies and improvements there. So it doesn't seem like that really is an issue. On the life science side, the argument was, or is, that drug companies may have a few patents. Sometimes as low as four has been called a thicket. This somehow stops a generic from entering. If you know how district court litigation works, which is often how generics entered because of [the] Hatch-Waxman [Act], which was designed to allow generics to enter earlier and given certain benefits by challenging the patents near the end of their life, the number of patents doesn't really change the cost on that very much unless it's very large numbers and they're very different patents. So I think it doesn't really apply in life sciences for slightly different reasons than in tech, but neither one is really the issue that it has been made out to be.
Giachino (09:48.0775 - 10:26.0359)
Staying on that subject of litigation for a second. I understand you're a former patent litigator. So you obviously have extensive experience researching and understanding how intellectual property, whether that's patent, copyright or whatever the case may be, how that impacts our daily lives and how the rights of these innovators have been encroached upon or treaded upon as of late.
Since you left that form of practice and have moved into this arena, what changes over the years have you seen to pursue these issues that require it to be done as well from an academic standpoint as you're doing now?
Kresh (10:26.0570 - 11:31.0020)
There has been a lot of changes in patent litigation over the last decade from when I started law school. Really even actually before that with eBay limiting injunctions, and there's pending legislation on that. Then a number of cases that affected patent eligibility, which for your audience, there are a number of requirements to get a patent. The first one is whether it is eligible. Basically, is this a type of category of things that you can get a patent in.
Then there's anticipation, obviousness enablement, which is has someone else done this exactly before? Is it too close to things that have been done before? And did you describe it well enough? Eligibility has become a major gatekeeper and been quite impactful in at least a couple of areas, including diagnostics and software patents in the last decade with major changes throughout. There's pending legislation on that, which may move things in a better direction.
I mentioned injunctions as well. A patent is just a right to exclude. It's not a right to do anything else. It just means you can theoretically stop someone else from copying you.
Giachino (11:31.0719 - 11:32.0380)
I'm sorry. Go ahead.
Kresh (11:32.0549 - 11:52.0330)
About 20 years ago, the Supreme Court put up a case that changed and made it quite hard for at least certain types of companies to get injunctions. We have interesting stats on that, which made it really a right to offer a license to someone rather than a right to exclude, which has some pretty big changes for innovators, which I'm happy to discuss.
Giachino (11:53.0469 - 12:29.0085)
Let's go back for a minute if we can because I think the work that's being done at IPPI at a global level is also very, very important in this sphere.
Over the summer you partnered with the World Intellectual Property Organization (WIPO) to host the 2025 WIPO US Summer School on intellectual property. I assume this potentially may be an annual event. Can you enlighten us a little bit about this important effort, what you hope will come from that partnership and from workshops of this nature?
Kresh (12:29.0366 - 13:37.0164)
WIPO has a number of summer schools they offer with universities around the world, and we've hosted their US one for, I believe, seven years now. Going back to George Mason for the prior six years. Then this year we moved it to Akron. The summer school is a 2-week intensive course that covers all areas of IP and it's open to anyone who really wants to apply. There are some basic requirements, but it's not that hard to join. We have law students from the US, but we have also many from around the world. Many international students.
Last year, we had a dozen students from India who were taking it virtually in the middle of the night because we ran 9 to 5 East Coast time in the US. They're running from 2 in the morning most nights for two weeks to join us to learn a little bit about US IP. We do focus on how IP works in the US to try to teach people around the world how it works, why it's important and why for some of them who are government officials or or junior officials, [why] they might want to consider adopting certain things that we do and how it interacts with our innovation ecosystem. We also have teachers, both academics, industry and even government. We've had the PTO and the State Department involved most years and the Copyright Office as well.
Giachino (13:37.0505 - 14:21.0700)
That's exciting. Along those same lines with the Thomas Edison Innovation Law and Policy Fellowship, I understand your goal is to produce this rigorous research that's going to examine the moral and economic value of innovation. There's a lot of data out there thankfully about the economic value of innovation, but what do you mean by the moral value?
It's a tough question. I struggled with it. I'm assuming it gets down to in this situation what you talked about in terms of people encroaching or stealing property rights.
Kresh (14:21.0849 - 15:11.0774)
Yeah, that is certainly a part of it. Depending on who you talk to in the academic community, there's different views on moral rights and IP, which can get complicated. I'm not sure it makes sense to go into for this audience.
What I'll say on the Edison Fellowship is that for most other professor programs, you do a PhD and then a postdoc. You really learn how to be a researcher and a professor before you become a professor. Law professors don't work that way. Usually, you'll go to law school, go clerk for a year or two, maybe work for a year or two, and then you become a professor.
Our fellowship is one of the few things that is really designed to teach you how to be a law professor. At least from the research and writing side of it. We assume the schools will handle the training side for teaching, but writing is a very important part for law professors and getting that grounding in academic writing is something which is really missing from most legal systems and something which we focus on with our fellows.
Giachino (15:11.0775 - 16:05.0000)
You've got a strong fellowship program. A lot of the folks I know who are involved through the fellowship as well as your institutional partners, your advisory board, just getting all those people engaged on the critical importance of protecting intellectual property is well worthwhile.
Which then gets me to something that you're going to be hosting in a few short months. In late February, IPPI is going to be hosting a wonderful event here in Florida - the IPPI 2026 Winter Institute: IP and National Success. Tell me a little bit about that conference, the subjects that will be covered and its goals. Who do you hope will attend something like that?
Kresh (16:05.0343 - 17:32.0989)
We've run an annual conference in DC for the last decade as part of our prior affiliation with George Mason. This is the first time we're hosting it off-site, so we're sort of curious to see who's going to attend. Usually we had a mix of academics, industry and policymakers with kind of a heavy focus on teaching policymakers about important issues and moving the discussion forward in certain ways.
What we're doing for that conference, besides having the public event at Disney in February, we will be recording it and we'll make the recordings available online afterwards as we usually do. We also will have the transcripts published in the Akron Law Review as a symposium issue likely later this year for those who can't attend and want to read what we talk about.
The theme this year is IP in the national interest, and we're focusing on the importance of IP in this country. For those who are not in IP heavy industries or aren't necessarily aware of it, why should they care about IP? Why does it matter that we protect IP or if we continue to protect or fix some things we've made some mistakes on over the past years?
We'll be covering topics including national security, life sciences and biopharmaceuticals, the value of IP to startups, which is quite important, and also AI and copyright, which is a very hot topic. Why breaking copyright to improve AI may not have the benefits that some think it might. Why it's important to continue to protect copyright even in the view of the importance of AI and training.
Giachino (17:33.0410 - 17:51.0594)
It is going be an exciting event. I know that it's something that a lot of folks will probably want to make sure that they attend or at least get access to through the recordings.
Our guest has been Joshua Kresh, Executive Director of the IP Policy Institute (IPPI). Josh, any parting thoughts before I let you go today?
Kresh (17:51.0645 - 18:17.0229)
Thanks, Renee. I'll add, and we've said this multiple times before, that IP really does matter even if it's not in the industry you're in necessarily where you're not as aware of it.
Having strong IP rights has been a large part of the reason why we've been as successful as we have been as a country. It's important that we don't make changes that may help us in the short term, but have long term consequences that stop us from maintaining and keeping that lead.
Giachino (18:17.0229 - 18:30.0550)
That's what we're all working hard toward. Thank you for the work that you are doing as Executive Director of the IP Policy Institute at the University of Akron School of Law.
Thank you, Joshua. Have a wonderful afternoon. I appreciate your time.