Professor Jacob Sherkow was a speaker at the recent CRISPRMED conference in Copenhagen, Denmark. He participated in a satellite meeting structured around the topic of Access, IP Landscape and FTO, and spoke specifically about “CRISPR Patent Licenses: Lessons from History.”

Professor Jason Mazzone joined Professor Vikram Amar in his “Brothers in Law” series for SCOTUSblog, written with his brother, Professor Akhil Amar of Yale Law School, to examine the ways in which President Donald Trump’s executive order ending birthright citizenship is unconstitutional. The article goes beyond the text of the 14th Amendment, and examines the Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark as well as the 1952 Immigration and Nationality Act, both of which support the amendment and represent decades of settled case law. Their work was also quoted in a National Review editorial that predicts a supermajority will invalidate the executive order.

Professor Jacob Sherkow has extensive scholarship in the area of patents and has been cited as an expert many times on the issue of drug labels being used in patent cases. In the case of Hikma Pharmaceuticals USA Inc. v. Amarin Pharma Inc., currently before the United States Supreme Court, Sherkow has authored an amicus brief with Professor Paul R. Gugliuzza of the University of Texas at Austin School of Law. The brief is written in support of neither party, but urges the court to discontinue allowing this practice of “infringement by label.”

In a settlement deal over claims Moderna infringed upon patents owned by Roviant in its COVID-19 vaccine, Moderna has agreed to pay up to $2.25 billion. The settlement, however, has a unique structure in which Moderna will pay $950 million up front and then another $1.3 million if an appeal to have parts of its liability offloaded to the federal government fail. “This was a case that should have settled at the very beginning,” Sherkow told STAT. “There was never any real dispute that Moderna was infringing. It was just a matter of coming up with a number that was mutually acceptable.”

In his latest paper, Professor Jacob Sherkow argues that recent court decisions that treat safety information on a drug’s package as key evidence in patent cases against generic-drug manufacturers have been incorrectly adjudicated and should be reversed by the Supreme Court. “Those lower court decisions, which embrace a legal theory we call ‘infringement by label,’ are incorrect. It’s a fictional turn in the law that we hope the Supreme Court shuts down,” he told the Illinois News Bureau.

Professor Jake Sherkow spoke to Bloomberg Law on several occasions in February, regarding patent lawsuits that are making their way through the courts.

Drug labels required by the U.S. Food and Drug Administration are meant to help ensure safe and effective use of prescription drugs; however, recent court decisions have problematically treated those labels as key evidence in patent infringement cases, with drug companies engaging in what Professor Jacob Sherkow calls “patent gamesmanship” that could potentially limit access to affordable generic drugs. In his latest scholarship, published in The New England Journal of Medicine, Sherkow and his co-authors urge the Supreme Court to address this trend.

Professor Jacob Sherkow recently presented his work on patent infringement at three separate events. He presented a paper, “Compounding Patent Infringement” at the Stanford Patent Scholars Roundtable in January, and in February he presented “Infringement by Drug Label” at the Health Law Colloquium at the Ohio State University Moritz College of Law as well as at the Center for Law and the Biosciences at Stanford Law School.

“Infringement by label” is when a court treats drug labels as if they were patent claims, assessing whether their text merely “contains” a patented method of use, and it is also the subject of the latest scholarly research from Professor Jacob Sherkow. Writing in the Stanford Law Review, Sherkow explains how infringement by label threatens the ability of generic drugs to enter the market and how this creates a lack of clarity in the about patent infringement.

Professor Jacob Sherkow has co-authored a new paper with Laura Valtere (University of Copenhagen – CeBIL) and Timo Minssen (University of Copenhagen – CeBIL) titled “Intellectual Property, New Genomic Technologies And Plant Innovation: Clearing Innovation Pathways.” The abstract follows: