Posts in Antitrust

At the same time that America’s business climate has become too acidic for a vast majority of domestic startups, the nation has also been losing its place in the global supply chain while other major global economies, like China’s, are becoming increasingly self-reliant… This report identifies trending emerging tech like virtual reality, augmented reality, machine learning, smart robots, gesture control devices, smart data discovery and virtual personal assistants, as well as consumer expectation levels and the length of time until the emerging tech becomes fully commercializable. As Aronoff noted, much of the innovation in those sectors relies on software. “Is that even protectable anymore?” Aronoff asked… With the new patent enforcement gauntlet in the U.S., what does it really take for a small company to protect its IP in the current system?

Qualcomm accused Apple of engaging in tortious interference relating to Qualcomm’s licensing activities with Apple’s contract manufacturers. Specifically, Qualcomm asserts that Apple pressured contract manufacturers to withhold licensing payments they would normally have made to Qualcomm. Apple has allegedly also pressured contract manufacturers to refuse to comply with Qualcomm auditing procedures, leading to Qualcomm’s inability to verify the accuracy of royalty reports… Qualcomm also notes that its licensing activities with Apple’s contract manufacturers go back years before Apple sold its first cell phone in 2007, as early as February 2000 in the case of Taiwanese firm Compal Electronics. Qualcomm asserts that its licensing agreements with the contract manufacturers were consistent with policies set out by the European Telecommunications Standards Institute (ETSI).

The U.S. Federal Trade Commission (FTC) will not be radically changing the analysis used to address antitrust issues presented by patent law issues. The news stems from comments made by FTC acting chairman Maureen K. Ohlhausen at the 32nd Annual Intellectual Property Law Conference sponsored by the American Bar Association (ABA). Ohlhausen would go on to explain that the recent updates to the IP Licensing Guidelines, which occurred in January 2017, were “modest”, provided the FTC with flexibility, and continue to recognize that “IP law grants enforceable rights.”

This different approach—a commercialization approach—has been embraced across the American political spectrum, including both the Carter administration and the Reagan administration,[4] as well as by celebrated jurists of the last century coming from diverse philosophical perspectives, including Circuit Judges Learned Hand, Jerome Frank, and Giles Rich,[5] who saw it as important to helping the economy and society.[6] The roots of a commercialization approach to patents, in particular, reach back even further into American history, including Abraham Lincoln’s view that the patent system “added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.”[7] Its study has also long extended far beyond our nation… A commercialization approach to IP views IP more in the tradition of private law, rather than public law. It does so by placing greater emphasis on viewing IP as property rights, which in turn is accomplished by greater reliance on interactions among private parties over or around those property rights, including via contracts.

Google tries to strike a “patent peace” with a new cross-licensing initiative for Android developers. The Federal Circuit is petitioned for review of a judgment in a patent case on the grounds that arbitration flouted public policy. A couple of Texas academic institutions square off in a patent battle over cancer treatments. Also, a House bill moves forward which would make the Register of Copyrights a Presidential appointee.

These government agencies target successful, inventive U.S. firms. They politicize their processes and disregard the exclusivity that rightfully belongs to patent owners. They take away private property from the creators and give it to favored domestic companies like Samsung and Huawei, which apparently lack the smarts to win fair and square in market-based competition or by ingenuity. It’s time that America put an end to these threats, foreign and domestic. Either you believe in property rights and free enterprise or you don’t… In essence, Chinese, South Korean and FTC officials demand the benefits produced by free markets and property rights for free from American innovators in mobile technology, who took all the risk and made investments in research and development.

On March 3rd, Swedish telecommunications company Ericsson publicly announced its fair, reasonable and non-discriminatory (FRAND) terms and conditions for the licensing of standard essential patents (SEPs) for 5th Generation New Radio (5G/NR) as standardized by the 3rd Generation Partnership Project (3GPP). The decision to announce these terms publicly may be an indication that Ericsson is looking to avoid the fate of other mobile wireless chip makers, which have come under fire in recent months for their own licensing practices.

On January 23rd, the Federal Trade Commission (FTC) announced that it had taken steps to resolve antitrust charges involving business activities employed by Irish/U.S. drugmaker Endo International (NASDAQ:ENDP) designed to delay the entry of generic pain medications into the U.S. to preserve monopoly profits. The FTC filed a complaint for injunctive relief and a motion for entry of stipulated order for permanent injunction against Endo and others in the U.S. District Court for the Northern District of California (N.D. Cal.). These actions revive charges from a lawsuit filed by the FTC last March against Endo involving pay-for-delay patent settlements.

On the menu this week for Other Barks & Bites, the Supreme Court hears oral arguments in a case challenging the Lanham Act’s disparagement provision, a six-figure damages verdict goes in favor of former USPTO Deputy Director Russell Slifer, a TTAB petition is filed to challenge the trademark application for an NFL franchise currently in the relocation process, an announcement by a Japanese academic-industry research project that claims to have doubled the effectiveness of solar cell panel conversion rates, the FTC takes action against a pharmaceutical company and much more.

This week’s news headlines include nomination hearings for the potential incoming U.S. Commerce Secretary, the Supreme Court’s granting certiorari for an important case in biologics, a patent infringement suit targeting the NFL, the expiration of copyright protecting the works of a very influential science fiction author from the early 20th century, and another sports figure — this time UFC Lightweight Champion Conor McGregor — filing trademark applications.

The fine on Qualcomm is for allegedly refusing to license standard essential patents to competing companies on fair and reasonable terms. According to the Korean authorities, Qualcomm’s actions amounted to coercion for the purpose of strengthening its monopolistic power in the patent license market and chipset market… Not surprisingly, Qualcomm vehemently disagrees with the assertions made in the press release, has pointed out that a final written decision is not generally expected after an announcement like this for another 4 to 6 months, and promises to aggressively appeal… Rosenberg explained that Qualcomm was repeatedly denied access to documents and the right question witnesses, rights that are guaranteed to U.S. companies under the Korea-U.S. Free Trade Agreement.

The message is being received by patent owners around the world, including those with large U.S. patent portfolios, that China is a reasonable and fair place to resolve patent disputes… Aside from any anecdotal evidence and cultural bias theories, it is also hard to ignore the reality playing out inside the Chinese IP courts. Foreign patent holders have been having a great deal of luck in China’s IP courts, at least at the courthouse situated in Beijing… If these patent granting and litigation trends continue, we could be left with the rather mind-numbing conclusion that China, a country ruled by a communist government, has a more robust innovation protection regime than the United States, an ostensibly capitalist country that doesn’t seem to see the virtue in protecting the rights of innovators.

Another regulatory issue other than antitrust thatis likely to surface during review of the AT&T-Time Warner merger is zero rating, or the practice of providing content for free to consumers on a network. The way that the FCC has implemented net neutrality certainly would indicate that zero rating would likely be regulated at some point, even though it would do so to the likely detriment of the American consumer… This June, FCC Chairman Tom Wheeler indicated that the investigation into zero rating practices was ongoing. In mid-October, a group of 76 organizations signed another letter urging the FCC to issue rules making zero rating illegal, so the momentum in this area looks like it’s increasing.

The IP Licensing Guidelines, which state the agencies’ antitrust enforcement policy with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law and of know-how, were issued in 1995 and are now being updated. In the agencies’ view, the IP Licensing Guidelines remain soundly grounded, as a matter of antitrust law and economics. Nevertheless, the agencies have determined that some revisions are in order because the IP Licensing Guidelines should accurately reflect intervening changes in statutory and case law.

Google, the Internet software and services arm of Alphabet Inc. (NASDAG:GOOGL), offers a tremendously valuable portal to the wider Internet through its flagship search engine service. One of the more popular aspects of Google’s search engine is the image search features; as of July 2010, Google’s image search was delivering one billion pageviews per day to the company and 10…