Entrevista de peso

O advogado e Professor Pedro Marcos Nunes Barbosa, associado do IBPI, entrevistou Ryan Benjamin Abbott, Professor de Direito, consultor e árbitro, nos EUA e no Reino Unido, filho do renomado Frederick M. Abbott – Florida State University College of Law.

O entrevistado é autor da obra “The Reasonable Robot: Artificial Intelligence and the Law”, publicada em 2020 pela Cambridge University Press..

Prof. Ryan Benjamin Abbott

Ryan Benjamin Abbott is a second generation IP Law professor (son of the famous author and scholar Frederick M. Abbott – Florida State University College of Law), a litigator, a consultant and an arbitrator in the USA and UK. Although he is quite young his experience in Law and Medicine is impressive. His short resume available at his personal site (https://ryanabbott.com/about-2/) says: “Ryan Abbott, MD, JD, MTOM, PhD is Professor of Law and Health Sciences at the University of Surrey School of Law and Adjunct Assistant Professor of Medicine at the David Geffen School of Medicine at UCLA. He is the author of The Reasonable Robot: Artificial Intelligence and the Law published in 2020 by Cambridge University Press, and he has published widely on issues associated with law and technology, health law, and intellectual property in leading legal, medical, and scientific books and journals. Professor Abbott’s research has been featured prominently in the popular press, including in The Times, the New York Times, the Financial Times, and other media outlets based on time. He routinely gives keynote lectures and presents internationally in academic (e.g., MIT, Stanford, Yale, Oxford, Cambridge), government (e.g., World Intellectual Property Organization, World Trade Organization, UK Intellectual Property Office), and industry (e.g., Google, IBM, Swiss Re) settings. Managing Intellectual Property magazine named him as one of the fifty most influential people in intellectual property in 2019. Professor Abbott is a mediator and arbitrator with JAMS and a panelist with a variety of national and international dispute resolution service providers. He is a CEDR-accredited mediator and a Fellow of the Chartered Institute of Arbitrators (FCIArb). He has worked as a partner in legal practice, where he primarily focused on transactional matters and intellectual property litigation in the life sciences, and he has been general counsel of a biotechnology company.Professor Abbott is a licensed physician, patent attorney, and acupuncturist in the United States, and a solicitor advocate in England and Wales. He is board-certified by the American Board of Legal Medicine (ABLM). Professor Abbott is a graduate of the University of California, San Diego School of Medicine (MD), the Yale Law School (JD), University of Surrey School of Law (PhD), as well as a Summa Cum Laude graduate from Emperor’s College (MTOM) and a Summa Cum Laude graduate from University of California, Los Angeles (BS)”. Recently, Ryan has visited Brazil twice and presented relevant speeches in IP policy, A2K (access to knowledge), A2H (access to health), and Artificial Intelligence. Without any favor, his recent work “The Reasonable Robot” (https://www.amazon.com.br/Reasonable-Robot-Artificial-Intelligence-English-ebook/dp/B088T7FZJB/ref=sr_1_1?__mk_pt_BR=%C3%85M%C3%85%C5%BD%C3%95%C3%91&dchild=1&keywords=reasonable+robot&qid=1632943623&sr=8-1&ufe=app_do%3Aamzn1.fos.25548f35-0de7-44b3-b28e-0f56f3f96147) is the best book on IA, IP and Law that has been published, worldwide, yet. This interview has been conducted by Prof. Dr. Pedro Marcos Nunes Barbosa on September 2021.


(1) Who were the most important Law Professors of you had at you Bachelor’s and Masters Degree?

I never had a law professor in my bachelor’s and masters degrees. Law is, generally, not a subject offered at an undergraduate level in the US where I did most of my studies. My master’s was in Traditional Oriental Medicine, so very far afield from law! But, the professor I connected with most at law school was Ian Ayres. He and I even collaborated on a couple of papers – one on drug and device regulation in a legal journal, and also a randomized controlled trial of acupressure!

(2) How does your double (Medicine and Law) degree impact on the way you analyze IP?

I tend to approach things from a life sciences perspective. For instance, patents are often critical to commercializing new drugs and medical devices, whereas they are often less important to commercializing software.  I also think that having formal scientific training helps me to understand technical issues more completely than someone without such training. Sometimes that can be very useful for IP-related matters. 

(3) Which are the top 10 US IP books or articles you would recommend to a young student reading list?

That strikes me as a lot of reading!  For a student primer, I like these two volumes: 1. https://www.amazon.com/Intellectual-Property-Technological-Perspectives-Secrets/dp/1945555157/ref=pd_bxgy_img_1/131-4609641-8304557?pd_rd_w=eUITE&pf_rd_p=c64372fa-c41c-422e-990d-9e034f73989b&pf_rd_r=DPNKP0CMJ1BDNE69QS4Q&pd_rd_r=f7801c40-5838-4935-98d9-b6345fde3b22&pd_rd_wg=hN6GY&pd_rd_i=1945555157&psc=1, 2. https://www.amazon.com/dp/1945555165?tag=uuid10-20Then:  3. Heller, Michael, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets (January 1998). 111 Harv. L. Rev. 621-688 (1998), Available at SSRN: https://ssrn.com/abstract=57627, 4. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 Texas Law Review 1031 (2005). https://law.stanford.edu/publications/property-intellectual-property-and-free-riding/, 5. Lemley, Mark A. and Frischmann, Brett M., Spillovers. 107 Columbia Law Review 257 (2007), Available at SSRN: https://ssrn.com/abstract=898881, 6. McKenna, Mark P., The Normative Foundations of Trademark Law (December 30, 2010). Notre Dame Law Review, Vol. 82, No. 5, p. 1839, 2007, Available at SSRN: https://ssrn.com/abstract=889162, 7. Sunder, Madhavi, IP3. Stanford Law Review, Vol. 59, 2006, University of California, Davis Legal Studies Research Paper No. 82, Available at SSRN: https://ssrn.com/abstract=897753, 8. Leval, Pierre N. Toward a Fair Use Standard. 1990. 103 Harv. L. Rev. 1105 (1990) https://www.law.berkeley.edu/files/Leval_-_Fair_Use.pdf, 9. Litman, Jessica. The Public Domain. 39 Emory L. J. 965 (1990), and 10. Samuelson, Pamela; Davis, Randall; Kapor, Mitchell D.; Reichman, J. H. A Manifesto Concerning the Legal Protection of Computer Programs, 94 Colum L. Rev. 2308 (1994)

(4) Considering the US academia, in your opinion who are the ten most influential IP Law professors right now?

(a) Mark Lemley (Stanford), (b) Lisa Larrimore Oullette (Stanford) (c) Robert Merges (UC Berkeley), (d) Pamela Samuelson (UC Berkeley), (e) Peter Menell (UC Berkeley), (f) Dan Burk (UC Irvine), (g) Rochelle Dreyfus (NYU), (h) Katherine Strandberg (NYU), (i), Rebecca Tushnet (Harvard) and (j) John Duffy (University of Virginia).

(5) Considering the Economic approach to IP Law, in your opinion, which papers you would recommend for a young student to read?

(a)https://www.amherst.edu/system/files/media/1894/PosnerIntProp.pdf,(b)https://www.aeaweb.org/articles?id=10.1257/jep.5.1.3, (c),https://www.annualreviews.org/doi/abs/10.1146/annurev-lawsocsci-102811-173857,(d)https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr92&div=13&id=&page=, and (e) https://heinonline.org/HOL/LandingPage?handle=hein.journals/uclr78&div=6&id=&page=

(6) Considering your recent blockbuster book – “The Reasonable Robot” -, which of the ideas wrote in this piece you would speculate to impact the future of IP Law regulation?

I hope that the central theme of the book – that the law should not discriminate between AI and human behavior – will have an impact. More specifically, this is relevant to the protection of AI-generated works, such as articles written by AI, and inventions generated by AI under circumstances in which there is not a traditional human author or inventor. 

(7) Considering recent USA Supreme Court IP Law rulings, which cases would you suggest a young student to read?

(a) Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), regarded patent eligibility for “software patents” although not explicitly discussed as such in the case. Together with the 2010 Bilski v. Kappos, these were the first Supreme Court cases on the patent eligibility of software–related inventions since Diamond v. Diehr in 1981; (b) Google LLC v. Oracle America, Inc. 593 U.S. ___ a case on computer code and copyright law, and whether use of application programming interfaces (APIs) was fair use and whether APIs could be protected by copyright. The court held Google’s use of the APIs was fair use, and did not decide the copyright issue. APIs are a core part of many software programs and libraries. Also gives important insight into the fair use test; (c) Bilski v. Kappos, 561 U.S. 593 (2010), held that the machine-or-transformation test is not the sole test for determining the patent eligibility of a process, but rather one means of determining whether a claimed invention is a process; (d) eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), held that an injunction should not be automatically issued based on a finding of patent infringement, but also that an injunction should not be denied simply on the basis that the plaintiff does not practice the patented invention; (f) MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), held that defendant peer-to-peer file sharing companies Grokster and Streamcast could be sued for inducing copyright infringement for acts taken in the course of marketing file sharing software; (g) Diamond v. Chakrabarty, 447 U.S. 303 (1980), dealt with whether genetically modified organisms could be patented. Widely credited with spurring the development of the biotech industry in the United States; (h) Matal v. Tam, 582 U.S. ___ (2017) held the provisions of the Lanham Act prohibiting registration of trademarks that may “disparage” persons, institutions, beliefs, or national symbols with the United States Patent and Trademark Office violated the First Amendment; (h) Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), held that the making of individual copies of complete television shows for purposes of time shifting does not constitute copyright infringement, but is fair use. The Court also ruled that the manufacturers of home video recording devices, such as VCRs, cannot be liable for infringement; (i) Eldred v. Ashcroft, 537 U.S. 186 (2003), upheld the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA). This prevented a number of works from entering the public domain; and (j) Apple Inc. v. Samsung Electronic Co., Ltd. was the first of a series of ongoing lawsuits regarding smartphone and tablet design. At the time, Apple and Samsung collectively made most smartphones worldwide.