24th Annual BCLT/BTLJ Symposium Agenda

The Roles of Technology Expertise in Law and Policy

 

Thursday, February 27, 2020

Patent litigation often revolves around the use of experts.  Technical expertise has played a smaller role in most copyright litigation, but it has taken on great importance with the emergence of copyright protection for computer software and the use of the Internet as a means for distributing copyrighted works.  Musical expertise also plays a critical role in music copyright litigation.  In both patent and copyright litigation, the frequent use of juries affects the role and safeguards surrounding the role of experts.

Presiding Officer: Judge Jeremy Fogel (ret.), Executive Director, Berkeley Judicial Institute

12:30 p.m.

 The Use of Technical Expertise in Patent Litigation: Claim Construction, Patent Validity, and Patent Infringement

Patent claim construction and validity demand that courts view and evaluate patent claims from the standpoint of persons having ordinary skill in the art: the PHOSITA standard.  The Markman/Teva decisions make claim construction an issue for the court, authorizing district judges wide discretion in how expertise is deployed.  Patent validity, however, is often assessed by juries, although recent § 101 jurisprudence arguably affords judges somewhat more discretion in handling that question too.  This session will explore how patent litigators and judges view the role of technical experts in claim construction, patent validity, and patent infringement.

Morgan Chu, Irell & Manella LLP (moderator)

John Desmarais, Desmarais LLP

Sonal Mehta, WilmerHale

Kathi Vidal, Winston & Strawn

Judge Jon Tigar (ND Cal)

Judge Alan Albright (WD Tex)

Judge Maryellen Norieka (D Del)

1:45 p.m.

The Use of Economic and Technical Expertise in Patent Litigation: Patent Remedies

The determination of patent damages (lost profits, reasonable royalty, and FRAND licenses) and the availability and fashioning of injunctive relief typically turn on economic expertise.  Patent remedies can also involve technical expertise.  Daubert motions and motions in limine are commonly filed challenging the use of remedies experts.  This session will explore the current state of play on the use of economic and technical experts addressing patent remedies.

Professor Robert P. Merges, Berkeley Law/BCLT (moderator)

Douglas Lumish, Latham

Matthew Powers, Tensegrity Law Group

Judge James Robart (WD Wash.)

Judge James V. Selna (CD Cal.)

3:00 p.m. Break  
3:15 p.m.

The Use of Technical Expertise in Copyright Litigation: Computer Software

This session will explore the role of technical experts in software copyright litigation.

Professor Pamela Samuelson, Berkeley Law/BCLT (moderator)

Professor Shyamkrishna Balganesh, Penn Law

Professor Peter Menell, Berkeley Law/BCLT/BJI

Annette Hurst, Orrick

4:30 p.m.

The Use of Technical Expertise in Copyright Litigation: Music

This session will focus on the Blurred Lines litigation as a means to explore the role of music experts in musical composition infringement litigation.

Professor Peter Menell, Berkeley Law/BCLT/BJI (moderator)

Mark Avsec, Attorney, Musician, Musicologist

Judith Finell, Musicologist

Professor Joseph Fishman, Vanderbilt Law School

Richard Busch, King & Ballow

5:30 p.m.

Adjourn

 

Friday, February 28, 2020

Presiding Officer: Armbien Sabillo, Symposium Editor, Berkeley Technology Law Journal

9:00-10:15 a.m.

Who are the experts and what is the expertise necessary for sound technology policy and use of technology in governance?

 This panel will explore how the development of technology policy and the use of technology in governance requires both technical experts and expertise in the specific policy domains that the technology affects or to which the technology is being applied. Among other questions, it will consider whether traditional academic programs are producing the kinds of experts required, or do we need new models to address a new or heightened need? 

Ken Bamberger (moderator), UC Berkeley Law School

Jessica Eaglin, Maurer School of Law, Indiana University Bloomington

Susan Landau, Fletcher School of Law & Diplomacy and Department of Computer Science, Tufts University

Priscilla Regan, Schar School of Policy and Government, George Mason University

10:15 – 10:45 a.m. Break  
10:45-12:00 p.m.

Positioning Expertise

Since the Congressional Office of Technology Assessment was shuttered over 20 years ago, the federal government has experimented with different ways to bring technical expertise into technology policy making and technology deployment, ranging from the chief technologists at the FTC and FCC, to the US Digital Services team (USDS) and the 18F “skunk works” team developed during the Obama Administration, to the TechCongress fellows and the Science, Technology Assessment, and Analytics (STAA) team within the Government Accountability Office. These programs vary in objectives, where they position expertise, what work they perform–advisory to hands-on–and the tools they use to accomplish it. Given the varying needs of the legislature, the executive, and the independent regulatory agencies, what have we learned from these efforts and what does it recommend for the future?

Pam Samuelson (moderator), UC Berkeley Law School

Alan Davidson, Mozilla 

John Morris, The Brookings Institution, Center for Technology Innovation

Chris Yoo, University of Pennsylvania Law School

12:00 – 1:15 p.m. Lunch  
12:30 – 1:00 p.m. Luncheon Keynote

Sheila Jasanoff, Harvard Kennedy School

1:15 – 2:30 p.m.

Particular challenges at the state and local level

As technology permeates public services and functions from voting to welfare delivery, state and local governments are faced with a daunting need for expertise. What are the challenges governments face at this level, how are they being addressed, what can we learn and generalize from these efforts?

Catherine Crump (moderator), UC Berkeley Law School

Jeremy Epstein, National Science Foundation

Jen Pahlka, Founder and Executive Director, Code for America, former US Deputy Chief Technology Officer, OSTP  

Brittny Saunders, Deputy Commissioner for Strategic Initiatives, NYC Commission on Human Rights, Co-Chair of the NYC Automated Decision Making Taskforce

Rebecca Slayton, Department of Science and Technology Studies, Cornell

2:30- 3:00 p.m. Break  
3:00-4:15 p.m.

Evidence, objectivity, and measurement

How do we decide when and how to use technology? When and how do we measure its impact? What methods are necessary to make wise choices about technology policy and deployment? How do we bring them into government services?

Jennifer Urban (moderator), UC Berkeley Law School

Colleen Chien, Santa Clara University Law School

Bo Cowgill, Assistant Professor, Columbia Business School

Chelsea Mauldin, Public Policy Lab

Jake Snow, ACLU of Northern California

4:15 – 5:30 p.m.

Bridging between the technocratic and the democratic. 

Policy decisions can be embedded in system design, but the opacity of technical systems due to corporate secrecy, technical illiteracy, and technical complexity creates immense challenges to public input and accountability. This closing session will consider what processes can ensure the “political visibility” required for public input and political oversight. Impact assessments? Design reviews? Expert advisory boards? New software engineering approaches?

Deirdre Mulligan (moderator), UC Berkeley Law School and School of Information

Alexandra Chouldechova, Carnegie Mellon University

Andrew Selbst, UCLA School of Law

Joseph Lorenzo Hall, Internet Society

5:30 p.m. Adjourn