Janssen Inc. is a pharmaceutical company of Johnson & Johnson. It is an innovator in the pharmaceutical industry and has a corporate goal of helping people live healthier lives. It conducts research and develops a wide range of drugs for medical disease treatment or prevention.

I joined Janssen at an exciting time. With the implementation of the Canada – European Union Comprehensive Economic and Trade Agreement (CETA), a number of aspects of the drug regulatory framework in Canada face pending changes. Through my internship, I saw how proactive the different stakeholders in the industry are and the important roles they play in shaping the industry. I not only got to learn and discuss about the concerns different stakeholders have, but also had the opportunity to help develop the position Janssen takes on some of these issues. This type of experience and learning opportunity is something difficult to obtain in a classroom setting. Instead of the typical classroom learning of implemented statutes and regulations, I had the opportunity to observe and participate in that change process. In fact, I learned that this type of participation does not only occur at the time of trade agreement negotiations and implementations. The various stakeholders of the industry continuously assess the industry environment and advocate for legislative changes.

Through this internship, I also gained a new level of appreciation for the importance of “business” in the practice of law (intellectual property law in particular). As part of my internship, I worked on various agreements, observed on-going legal proceedings, prepared for internal advisory consultations, and attended business planning meetings. Through these experiences, I realized that from litigation strategy to contract negotiations to internal practice advisories, intellectual property serves a greater business goal. Therefore, the practice of intellectual property law needs to be mindful of business practices and objectives. For example, I learned that sometimes although a company may have a strong legal position, it may not always be ideal to enforce or take that position due to various business considerations, such as consideration for business relationships or business efficiency. I saw the importance of understanding the broader business objective of the company and the role effective inter-departmental communication can play for that purpose.

This internship experience is extremely valuable. It is worthwhile both for students who intend to become an in-house legal counsel and for those who intend to go into private practice. Being a student intern at the Law Department of Janssen Inc., not only did I observe the role and expectations of an in-house counsel in the pharmaceutical industry, I also gained a better understanding of what a company needs from its external legal counsels. Through regular discussions with other in-house counsels, I learned that companies are often not looking for a detailed theoretical analysis of the legal problems they face (which could take days), but instead, they want quick and to the point legal opinions. Companies also appreciate external counsels that understand their business and are able to provide advises or identify additional issues pertinent to their business objectives. Having better insight into the needs of a client company will allow any student who intends to practice in a law firm setting to better serve their future clients.

I have learned so much and met many knowledgeable people who generously donated their time to teaching and mentoring me during my internship. I was fortunate to have the unique experiential learning opportunity during my legal education. It definitely offered a different learning experience from both classroom and law firm settings.

Sue (Zhonghui) Fei is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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Elsevier is one of the largest science and medical publishers in the world. Prestigious journals, such as and , are amongst its products. Over the years, it has been the subject of a number of criticisms, including its pricing regime (see , and ), its strong stance against academics posting their own articles on university archives (see and ) and other platforms (see and ), and the sale of open access articles (see ).

On August 30, 2016, the United States Patent and Trademark Office granted Elsevier a monopoly over the “waterfall process” of online peer review. This is a process whereby, upon rejection, a different journal (chosen through a comparison of the submitted articles of the author and the published articles of the suggested journal) is suggested to the author for resubmission. The referral occurs automatically, and upon the author’s consent, the article is immediately forwarded to the recommended journal.

Since the patent grant, much of the commentaries have been negative. Many people immediately went on social media to express their shock and discontent. One of whether there is prior art to “online peer review”. The same person also expressed his that less resourceful entities cannot legally challenge this patent. Although in response in an attempt to calm fears, it was ineffective. The Electric Frontier Foundation rated it . on Scholars Cooperative compared this move by Elsevier to be similar to that of a patent troll. (Harsh!)

In an age where academic publication is trending towards open access, coupled with the criticisms of Elsevier’s anti-open access practices, the passionate anger from the public is understandable. However, as heated emotions calm, it is important to take another look at this patent more cool-headedly with two questions in mind: (1) is the patent valid and (2) what is its point if it is valid?

On the issue of validity, the commentaries focus on novelty. It has been pointed out that the waterfall process is what others refer to as “” and has been used by others prior to Elsevier’s patent filing. However, a closer look at the patent makes it apparent that Elsevier acknowledges that there are existing journal referral practices. Elsevier notes that what is lacking is a “more flexible and convenient” system, such as referrals to non-sister journals. Reading the patent holistically, it appears that the novel aspect of Elsevier’s invention is an improved and automated system of the online cascading peer review process. Examining the broadest claims, it is evident that they contain many elements, including the novel improvements on the cascading peer review process, thus making the scope of the patent narrow. Overall, it appears that this patent satisfies the novelty requirement.

The more interesting issue is whether the invention is truly “inventive”. In my opinion, expanding the cascading peer review process to non-sister journals and automating the process through computer programs seems rather obvious. However, not being a “person having ordinary skill in the art”, I am not qualified to make any judgments. It would be interesting to hear expert opinions on this issue.

Finally, assuming the patent is valid, is there any value in it? With all the criticisms Elsevier has been under and the boycott against Elsevier, this move was immediately perceived as hostile and anti-open access. Elsevier was compared to a patent troll because people imagine the publisher would use the patent to block out journals with less resources (especially the open access ones) by suing them for using a similar cascade peer review process. So in terms of company image, this move was damaging. However, considering the claims of the patent are very specific, it should be easy for others to work around the essential elements of the claims, making it hard for Elsevier to enforce the patent. Maybe Elsevier never intended to block out other publishing entities. Maybe Elsevier wants to generate revenue by licensing its waterfall process to other entities. If so, it should not be too difficult to work around the narrowly claimed invention. With the anti-Elsevier attitude many academics have, would other publishing entities want to license from Elsevier? If not, was the cost in money and public image of getting this patent worth it? We can only wait and see.

Sue (Zhonghui) Fei is a JD Candidate at Osgoode Hall Law School.  Sue is currently enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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