24th Annual BCLT/BTLJ Symposium Resources

The Roles of Technology Expertise in Law and Policy

Day 1: The Judicial Branch

Panel 1: The use of technical expertise in patent litigation: claim construction, patent validity, and patent infringement

Ike Brannon, Who Should Decide Patents for the U.S.? Forbes (2020)

Matthew Sipe, Experts, Generalists, Laypeople – and the Federal Circuit. Harvard Journal of Law and Technology (2019)

Saurabh Vishnubhakat, Disguised Patent Policymaking, Washington and Lee Law Review (2019) 

Panel 2: The use of economic and technical expertise in patent litigation: patent remedies

Stuart Graham, Peter Menell, Carl Shapiro, and Tim Simcoe, Final Report of the Berkeley Center for Law & Technology Patent Damages Workshop, Texas Intellectual Property Law Journal (2017)

PricewaterhouseCoopers, 2019 Daubert Study, Effective Strategies and Trend-Spotting In Patent Damages (2019) 

Dana Trexler Smith, How Did They Get That Number? An expert witness talks about the art of calculating damages in IP litigation, Corporate Counsel Business Journal (2017)

Daralyn Durie and Mark Lemley, A Structured Approach to Calculating Reasonable Royalties, Lewis & Clark Law Review (2010)

William Rooklidge, Hon. Martha Gooding, Philip Johnson, and Noreen Krall, Compensatory Damages Issues in Patent Infringement Cases (Pages 78-98), Federal Judicial Center (2017) 

Panel 3: The use of technical expertise in copyright litigation: computer software

Peter Menell, David Nimmer, and Kevin Green, Distinguishing Mayor McCheese from Hexadecimal Assembly Code for Madden Football: The Need to Correct the 9th Circuit’s ‘Nutty’ Rule barring Expert Testimony in Software Copyright Cases, UC Berkeley Public Law Research Paper (2017)

Peter Menell, David Nimmer, and Kevin Green, Why the Ninth Circuit’s Antonick v. Electronic Arts Case Is an Ideal Vehicle for Addressing the Circuit Split Over Admissibility of Expert Testimony in Software Copyright Cases, UC Berkeley Public Law Research Paper (2017)

Michael Risch, Using Experts to Prove Software Copyright Infringement, Written Description Blog (2017)

Peter Menell, Rise of the API Copyright Dead?: An Updated Epitaph for Copyright Protection of Network and Functional Features of Computer Software, Harvard Journal of Law & Technology (2018).

Panel 4: The use of technical expertise in copyright litigation: music

Judith Finell, Scandalous Notes: A Musicologist Discusses New Developments in Music Technology That Challenege Copyright Attorneys and Expert Witnesses, NYSBA Entertainment, Arts and Sports Law Journal at 32-34 (2008)

Jordan Runtagh. Songs on Trial: 12 Landmark Music Copyright Cases. Rolling Stone (2016)

Jeanne Fromer and Mark Lemley, The Audience in Intellectual Property Infringement. Michigan Law Review (2014)

Joseph Fishman Music as a Matter of Law. Harvard Law Review (2018) 

Day 2: The Executive and Legislative Branches

Panel 1: Who are the experts and what is the expertise necessary for sound technology policy and use of technology in governance?

US Government Accountability Office, GAO Science, Technology Assessment, and Analytics Team: Initial Plan and Considerations Moving Forward (2019)

Bogdan Belei, et al., Big Tech and Democracy: The Critical Role of Congress, Technology and Public Purpose Project (2019)

Bruce Alberts et al., How to Bring Science and Technology Expertise to State Governments. Proceedings of the National Academy of Sciences (2018)

Deirdre Mulligan and Kenneth Bamberger, Procurement as Policy: Administrative Process for Machine Learning. Berkeley Technology Law Journal (2019)

Panel 2: Positioning expertise

Zach Graves and Daniel Schuman, Science, Technology, & Democracy: Building a Modern Congressional Technology Assessment Office, Harvard Kennedy School for Democratic Governance and Innovation (2020)

Grant Tudor and Justin Warner. Congress should revive the Office of Technology Assessment. Here’s how to do it, Brookings (2019)

Aaron Fluitt and Alexandra Givens, Improving Tech Expertise in Congress: Time to Revive OTA? Georgetown Law Institute for Technology Law & Policy (2018)

Timothy Persons, Overview of GAO’s Enhanced Capabilities to Provide Oversight, Insight, and Foresight. GAO (2019)

Elizabeth Fretwell, et al., Science and Technology Policy Assessment: A Congressionally Directed Review, Nat’l Acad. of Pub. Admin. (2019)

Panel 3: Particular challenges at the state and local level

Donald Norris, et al. Cyberattacks at the Grass Roots: American Local Governments and the Need for High Levels of Cybersecurity. Public Administration Review (2019)

Paige Reinauer, From Hanging Chads to Data Hacks: Maintaining Election Integrity in the Digital Age, University of Maryland Carey Journal of Business & Technology Law (2019)

Rebecca Slayton and Aaron Clark-Ginsberg, Beyond regulatory capture: Coproducing expertise for critical infrastructure protection, Regulation & Governance (2017)

Panel 4: Evidence, objectivity, and measurement

Helge Majer, Technology measurement: The functional approach, Technological Forecasting and Social Change (2002)

Colleen Chien, Rigorous Policy Pilots: Experimentation in the Administration of the Law, Iowa Law Review (2019)

Cary Coglianese and Todd Rubin, Learning What Works in Regulation, Penn Law Regulatory Review (2018)

Michael Abramowicz, et al., Randomizing Regulation, Penn Law Regulatory Review (2012)

Panel 5: Bridging the gap between the technocratic and the democratic

Alexandra Chouldechova, Fair prediction with disparate impact: A study of bias in recidivism prediction instruments, Big Data (2017)

Aaron Boyd, Why It’s So Hard To Write Federal Technology Policy, Nextgov (2019)

Deirdre Mulligan and Kenneth Bamberger, Saving Governance-by-Design, California Law Review (2018)

Hannah Quay-de la Vallee and Natasha Duarte, Algorithmic Systems in Education: Incorporating Equity and Fairness When Using Student Data, Center for Democracy & Technology (2019)


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