Posts in International

Last Saturday, my friends and I practically bounced our way to the movie theatre, joining throngs of pink-clad youngsters to watch the year’s biggest global blockbuster: ‘Barbie.’ Well, Barbie has done it all, honestly. She has not only achieved unparalleled success as a toy, with over a billion units sold worldwide, but now as a movie, amassing an impressive $365 million global opening. She has defied traditional stereotypes by promoting career-focus and self-sufficiency, challenged the motherhood-aspiration notion for young women, and inspired Greta Gerwig’s modern take on the iconic character. However, we often overlook the doll’s profound contributions to the evolution of intellectual property (IP) jurisprudence, from its genesis to its movie adaptation.

The Information Technology & Innovation Foundation (ITIF) released a report last week that calls on the G7 countries to bring Japan’s “Data Free Flow with Trust” (DFFT) initiative to life. According to Japan’s Digital Agency, the goal of DFFT is to promote the free flow of data through transparency while ensuring security and IP rights. The ITIF wrote, “building an open, rules-based, rights-respecting, and innovative global digital economy will depend on a small group of ambitious countries working together—such as at the DFFT—in a flexible format to draw in relevant international organizations and other interested countries and stakeholders.”

The Senate Subcommittee on Intellectual Property today held a hearing on Oversight of the United States Patent and Trademark Office (USPTO), with USPTO Director Kathi Vidal as the sole witness. Only a handful of senators questioned Vidal, and only one significantly challenged her in questioning. The hearing differed considerably from the House IP Subcommittee’s Oversight Hearing in April, where Vidal was repeatedly taken to task on the Office’s then-recently issued Advance Notice of Proposed Rulemaking (ANPRM).

Of the many ways that the Patent Trial and Appeal Board (PTAB) works to the detriment of the U.S. innovation economy, one of the most nefarious is the Chinese government’s use of patent validity review to advance its national interests. Recent briefing filed at the PTAB suggests that the Board is quietly helping China win the war for technological supremacy during the 21st century, mainly by destroying the economic interests of American small businesses innovating in industrial sectors critical to American national security.

Today, the Information Technology & Innovation Foundation (ITIF) published a white paper titled Innovation Wars: How China Is Gaining on the United States in Corporate R&D showing that, while the United States continues to enjoy a lead in several key sectors when surveying the world’s largest corporate investors in research and development (R&D), its largest economic rival is gaining and could achieve parity with the U.S. in about a decade.

The European Patent Office (EPO) today launched a dashboard on Unitary Patents, which will be updated daily and breaks down data on requests for Unitary Patents by technology field, country of origin, language of translation, proprietors’ profile and status of registration. According to an EPO press release, there have been 670 requests filed on average per week since the Unitary Patent went into effect on June 1, “demonstrating high interest in the new system.” 

“The true crime in ecommerce fraud is that creators will stop creating.” That grim assessment has driven Jennifer L. Cook of SnakeArts to fight like heck against rampant infringements and counterfeits globally. Her ongoing class action lawsuit against Meta Platforms claims their subsidiary Facebook knowingly permits copyright infringement via advertisements featuring stolen product images from artists. It seems to be in Meta’s best interest to do so: FB generates the bulk of its billions of dollars in annual revenue from advertisements, without regard to the legitimacy of content.

On Wednesday, July 5, the United Kingdom Intellectual Property Office (UKIPO) released a summary of the responses it has received to its request for views on whether the country’s system for standard essential patents (SEP) is functioning properly. The goal of the request for comments and the subsequent report is to determine whether the UK government needs to make policy changes in this area. The Office received comments on a variety of topics related to SEPs, including the balance of the system, competition, transparency, patent litigation, and more. While both SEP holders and implementers reported problems in the system, the UKIPO found that there was little consensus among stakeholders as to the efficiency of the system and whether government intervention was needed.

A UK judge in May determined in a non-public judgment that has been widely reported on that Apple should pay Optis a total of $56.43 million plus interest for a worldwide FRAND license to Optis’s portfolio of 4G standard essential patents (SEPs). In the most recent development in the overall case, Apple yesterday reportedly lost its appeal in one of the four technical trials pending between the parties, meaning it could still be liable for fees related to infringement in the range of $7 billion.  

Imagine setting sail on a vast ocean, marked by established sea routes governed by mighty, seasoned mariners. These old sea dogs, with their extensive map collections (akin to patents), dominate the waters, leaving little room for new explorers. This is the situation young companies often find themselves in when chartering into territories monopolized by a few dominant players. The networking industry, ruled by giants like Cisco, Huawei, Juniper, Nokia, and Ericsson, mirrors this vast ocean. The waters are thick with “patent thickets” – tangled masses of patent claims, making it hard for fresh-faced voyagers to navigate without infringing on existing patents. Moreover, the sea is marked by “standardization” lighthouses, which while guiding ships towards interoperability and quality, impose limitations on the course of innovation. These beacons can also increase the cost of compliance, posing as formidable reefs blocking the path of emerging vessels.

On June 8, the United States Supreme Court handed down a surprisingly decisive ruling on trademark law and its relationship with First Amendment rights. The Court found that free speech rights did not protect a manufacturer of dog toys, which mimicked a bottle of Jack Daniels, against an action for trademark infringement. The case has provoked widespread discussion among IP lawyers across the world regarding similar cases in other jurisdictions.

The U.S. Supreme Court (SCOTUS) ruled today in Abitron Austria v. Hetronic International that Sections 1114(1)(a) and 1125(a)(1) of the Lanham Act are not extraterritorial in nature and that “‘use in commerce’ provides the dividing line between foreign and domestic applications of these provisions.” The decision of the U.S. Court of Appeals for the Tenth Circuit, which upheld a $96 million damages award for Hetronic, was thus vacated and remanded. Justice Alito authored the opinion for the Court and Justices Jackson and Sotomayor each filed concurring opinions—though Sotomayor’s concurrence reads more like a dissent.  

The UK High Court today issued an Approved Judgment in Interdigital Technology Corporation & Ors v Lenovo Group Ltd [2023] EWHC 1578 (Pat). While Lenovo was declared the “overall winner,” InterDigital was awarded interest, increasing their previous award by $46.2 million. In March, the Hon. Mr Justice Mellor issued a judgment ordering Lenovo to pay InterDigital a lump sum of $138.7 million for a global FRAND (fair, reasonable and non-discriminatory) license covering sales of cellular devices from 2007 to December 31, 2023. It was the second full FRAND trial to be decided by the UK courts, following the landmark Unwired Planet case.

The impact of the long-awaited launch of the Unified Patent Court (UPC) is hard to overstate. While litigators and patent portfolio managers are immediately feeling the impact in Europe, surprisingly, they should also expect an impact on information disclosure statement (IDS) strategy for U.S. patent applications. To understand the impact, this article provides a background on how the European Patent Office (EPO) and UPC consider earlier national rights, how patent applicants can address earlier national rights to prevent invalidation at the UPC, how earlier national rights identified in a European patent application can affect a U.S. application and should be addressed in an IDS, and how this information can be used for monetization and litigation.