Posts in IPWatchdog Articles

The COVID-19 pandemic seems to be coming to a slow but steady close in Europe, with no evidence of a spike despite loosening of lockdowns, at least according to outlets like the Washington Post and Wall Street Journal. Although some media continue to report spikes in the number of coronavirus cases in certain states and areas, other media, such as Politico, acknowledge that two weeks after the widespread protests in virtually every major American city started there is no evidence of a spike. Of course, Politico has also reported the exact opposite. Whatever the case may be about whether COVID-19 and the coronavirus are increasing, decreasing, waning, spiking or likely to spell imminent doom, as sure as Americans are tired of being locked down, corporations of all sizes are rethinking their future. Many corporations, from startups to small businesses to the largest multinational technology corporations, have discovered that their workforce can operate just as effectively from home, if not more effectively.

This week in Washington IP events, the Senate Financial Services Subcommittee focuses on Federal Communications Commission spectrum auction oversight while the House Transportation Committee marks up a major transportation bill that would heavily impact research and development in that sector. In the realm of policy institutes, the Information Technology and Innovation Foundation discusses President Trump’s executive order requiring the FCC to clarify Section 230 of the Communications Decency Act, while the Brookings Institution explores workforce training programs in response to AI development as well as addressing racial biases in AI algorithms. This week also features a week-long event for licensing businesses to provide networking opportunities which have been extremely limited by the COVID-19 pandemic.

On June 9, the full Senate Judiciary Committee held a hearing titled “COVID-19 Fraud: Law Enforcement’s Response to Those Exploiting the Pandemic.”  The hearing, which was led by Chairman Sen. Lindsey Graham, R-S.C., included testimony by William Hughes, Associate Deputy Attorney General United States Department of Justice, The Honorable Craig Carpenito, United States Attorney District of New Jersey, Calvin Shivers, Assistant Director Criminal Investigative Division Federal Bureau of Investigation, and Michael D’Ambrosio, Assistant Director United States Secret Service Department of Homeland Security. Following an acknowledgment of the tragic death of George Floyd by each of the witnesses, the testimony focused on the response to fraud that has resulted from the COVID-19 pandemic, including the sale of fraudulent personal protective equipment (PPE) and cyber-enabled fraud. In general, Hughes focused primarily on the Department of Justice’s response to criminal conduct relating to the COVID-19 pandemic, Carpenito focused on hoarding and price gouging, Shivers focused on fraud schemes and illicit finance activities that seek to exploit the COVID-19 pandemic, and D’Ambrosio focused on the U.S. Secret Service’s work to counter cyber and financial crimes exploiting the pandemic.

It happened to Japan in the 1950s. Then it happened to Taiwan, and then Korea. Rapidly-developing countries started out relying on copying foreign technologies to drive their economies. But as growth increased and investments in education led the way to domestic innovation, each country found that a framework of strong intellectual property (IP) laws was necessary to sustain economic expansion. For many years, the relationship between China and the United States (as well as other Western countries) around IP has felt like pulling uphill on a very heavy wagon, as we tried to convince, cajole and threaten, often demanding reforms as part of trade negotiations. The relationship with China was further weighed down by the perception that the government was itself involved in misappropriation and that in general it was a proponent of weak IP protection. This past January, in the midst of a tariff war, China signed the “Phase One Agreement” that promised certain improvements in its trade secret regime in return for the United States dialing back some of the trade pressure.

Patents involving antibody medicines (antibody patents) are largely grouped into patents specified by antibody amino acid sequences (antibody sequence-based patents) and those not (non-sequence-based patents). Non-sequence-based patents have a broad scope and are thus very useful for protecting antibody medicines. Here, I investigate a recent trend in antibody patents characterized by an antibody-binding site in an antigen.

This week in Other Barks & Bites: USPTO announces relief under the CARES Act for restoring priority/ benefit rights; the CJEU has ruled that “functional shapes” are eligible for copyright protection if they are original works; China’s IP agency releases its annual budget including details on reducing patent pendency times to nearly seven months shorter than the USPTO; the Second Circuit finds a commercial activity exception to the Welsh government’s sovereign immunity defense against copyright infringement; Google creates takedown form for search results leading to counterfeits; the USPTO and Facebook tell the Federal Circuit that the Supreme Court’s Thryv decision requires vacatur of Windy City Innovations; Johnson & Johnson seeks a 70 percent success rate in COVID-19 vaccine trials; Sen. Thom Tillis voices increased concerns about copyright infringement by the Internet Archive; USPTO Director Iancu asks Congress for additional fee spending authority to maintain continuity during the pandemic; and Sony is successful in its Section 101 invalidation of patent claims covering an in-game reward system for slot machine games. 

Much has happened to the patent subject matter eligibility standard in the U.S. since Mayo. On April 27, 2020, Judge Paul Michel and John Battaglia published an excellent article on IPWatchdog analyzing the U.S. Section 101 patent subject matter eligibility jurisprudence. In that article, Judge Michel and Battaglia reminded judges and practitioners to reference “the more-favorable foreign patent laws on the patent eligibility for diagnostic testing, business methods and software … in countries such as England, China, or the European Union … to inform such a judicially created ineligibility standard, as opposed to the U.S. Constitution or a federal statute.”  Here, we take a quick comparative look at the current patent subject matter eligibility standard in China.

As we concluded in Part I of this article, the courts are being called upon in The Chamberlain Group v. Techtronic Industries, Inc to respond to an emergency situation in which they must stop the Federal Circuit’s “directed-to” version of the Mayo-Alice test from expanding into, and negating, claims in every subject imaginable. As Chamberlain urges, the patent statute, whether in Section 101 or beyond, does not limit the universe of eligible claims to those where a court can dissect its claim elements into old or “conventional” ones and those that represent the claim’s “patentable advance.” On that point, too, the Patent Act and the Supreme Court have been in unison: You can’t do that.

On June 8, the U.S. Court of Appeals for the Second Circuit, in Pablo Star Ltd. V, Welsh Gov’t, affirmed a decision of the U.S. District Court for the Southern District of New York denying the Welsh government’s motion to dismiss a claim of copyright infringement on the ground of sovereign immunity. In particular, the circuit court held that the activity resulting in the lawsuit fell within the commercial-activity exception of the Foreign Sovereign Immunities Act (FSIA)…. The circuit court explained that whether an activity is considered ‘commercial’ depends on the ‘nature’ of the activity, rather than the ‘purpose’, wherein nature is defined as ‘the outward form of the conduct that the foreign state performs or agrees to perform’ and purpose is defined as ‘the reason why the foreign state engages in the activity.’

The first half of 2020 has brought so much upheaval and disruption that it is almost hard to contemplate. In the future, there will be entire treatises and dissertations in a variety of fields of study that seek to understand the socioeconomic, psychological and inter-personal dynamics brought to bear. For now, individuals, families, business leaders, government officials— everyone really—are left to figure out what is next in this ever-changing landscape before us, which in the United States has become even more complicated by domestic unrest in virtually every major city. As states are opening up slowly, many businesses— of all sizes really— remain cautious.  Plans to return to pre-COVID normal are being discussed, but how can you, for example, get employees into the office when the U.S. Centers for Disease Control and Prevention (CDC) continues to recommend social distancing of at least six feet? With many offices being in high-rise buildings and elevators being only so large, the logistics of getting staff into and out of the office safely are daunting, let alone the reality that there is no plan for social distancing when using mass transit, for example.

District court patent filings remained unusually high this week (97), with 40 Patent Trial and Appeal Board (PTAB) cases filed (one Covered Business Method, one Post Grant Review, and 38 Inter Partes Reviews). This week’s spike was driven in part by suits brought by Rothschild subsidiaries, but almost entirely (and this is true throughout this year) by the superlatively aggressive filing strategies of WSOU, who refiled or newly filed 35 suits this week in the Western District of Texas. Controlling for those 35 file/refile complaints, this week looks like a much more reasonable 65 or so new patent suits. That said, if we continue to see 100 weekly suits (or even a little less), that’s more than 4,000 projected suits in 2020.

For the past 60 years, scientists have been able to utilize artificial intelligence (AI), machine learning, and other technological advances to “promote the general science …”. U.S. courts have increasingly come under pressure to not only allow AI-directed applications as patentable subject matter, but also from a small yet determined and growing contingency of IP professionals, to recognize the AIs themselves as the inventors. The EPO recently handed down guidance that AI could not be recognized as inventors on patent applications. The purpose of this piece is not to debate the merits of whether or not AI should be given inventor status on applications which, it has been argued, they are rightly due—nor should it be. It is important, however, to peek beyond the looking glass into a future where AI are given status in the United States that has, as of the writing of this piece, been reserved for human beings. Let’s explore a few main issues.

The case of the “garage door opener,” The Chamberlain Group v. Techtronic Industries, Inc., has received its share of attention. Rightly so. The case, after all, spotlights not only the breadth of the Supreme Court’s Mayo-Alice test for assessing patent ineligibility under 35 U.S.C. §101; but also the Federal Circuit’s particular “directed to” definition for that test and the dissection of patent claims that has followed.
And it fairly asks, in a petition to the Supreme Court, that if a claim on a garage door opener is “directed to” an “abstract idea” and thus ineligible for patent protection—is any patent, or any technology, safe from the Mayo-Alice ineligibility test? Chamberlain says no. From the outset, its petition declares that its case therefore presents a “patent emergency,” one that the Supreme Court must review to stop the Mayo-Alice test—and the Federal Circuit’s “directed-to” version of it—from expanding into, and negating, claims in every subject imaginable.

On June 3, independent foundation Bertelsmann Stiftung published a study titled “World class patents in cutting-edge technologies – The innovation power of East Asia, North America and Europe,” which examined how individual countries have advanced in the development and filing of “world class patents” between 2000 and 2019.  The study considered “world class patents” to be the most important 10% of patents filed in 58 cutting-edge technologies grouped into the following ten categories: environment, energy, nutrition, infrastructure, digitalization, security, materials, health, mobility, and industry.