Apple made headlines with its recent decision to close its stores in Frisco and my home town of Plano, Texas. The rumor is that Apple was afraid of the dreaded “patent troll.” However, Apple is not afraid of patent trolls. They are afraid of inventors. Whenever you hear the term patent troll, think of inventors. Inventors like my friend Bob Short, who solved an important technical problem in 1998 with his invention—a protocol that encrypts real-time audio and video transmissions. Apple wanted his technology for their FaceTime app, so they took it. Bob’s company, VirnetX, has spent six years trying to stop them and make them pay. Meanwhile Apple, Google, and other tech titans have spread propaganda and paid lawyers, academics, lobbyists, and politicians to destroy the U.S. patent system.
Since the 2014 Supreme Court decision in Alice v. CLS Bank International, patent claims including software have faced a much higher barrier for receiving patents than any other field of invention. This has also infected specialized software, such as artificial intelligence (AI), which is both distressing and sad. It also explains why Chinese AI start-ups are receiving more funding than U.S. AI start-ups, a fact that should be sending a shockwave through Capitol Hill. Since Alice, patent examiners have presumptively classified software claims that can be implemented on a general computer as covering nothing more than an abstract idea, which means they are ineligible subject matter under 35 U.S.C. § 101. To overcome this rejection, applicants must show why their claimed invention is something more than just a mere abstract idea. Ironically, what constitutes something more is itself an abstract idea, and even what is an abstract idea is itself an abstract idea. In something straight from out of the Monty Python version of patent eligibility, these key terms – something more and abstract idea – have not been defined by the Supreme Court or the Federal Circuit. As a result, most applications with software are routinely denied, which is understandable when frontline decision makers (i.e., patent examiners) are left without objective guidance. Subjectivity prevails.
USPTO Director Andrei Iancu participated in a fireside chat, titled “The Crossroads of Technology and Innovation,” hosted by the Consumer Technology Association (CTA) at its sixth annual Innovation Policy Day on Tuesday, March 12 at SXSW in Austin, Texas. Sitting with Director Iancu was host Michael Hayes, Sr. Manager of Government Affairs for the CTA. The chat was quite short and briefly touched on topics such as celebrating the 10 millionth-issued patent, the preparedness of the patent system for the future, artificial intelligence and patent eligibility, and the availability of patenting for all peoples. Then, in what some may consider to be an unscrupulous move, Hayes introduced the narrative of patent trolls.
On the afternoon of Wednesday, March 13, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held an oversight hearing of the U.S. Patent and Trademark Office featuring testimony from and questioning of USPTO Director Andrei Iancu. While this hearing was relatively short by Congressional standards, the Senate IP Subcommittee explored recent changes instituted during Iancu’s tenure as USPTO Director and also got into the debate on pharmaceutical patents—a topic that has been front and center for both houses of Congress in recent weeks.
Representative Steve Stivers (R-OH) and Representative Bill Foster (D-IL) introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act, which would in part restore injunctive relief as a remedy for patent infringement, in the U.S. House of Representatives in March of last year. While there has been much talk about closed-door discussions taking place on Capitol Hill recently around fixing Section 101 law, the House has not yet re-introduced the STRONGER Patents Act, and has thus far been focused on other issues this term. But Rep. Stivers seems confident that the Act has a chance this term, and says that this could be the consensus legislation the House needs. Read below for more on Rep. Stivers’ thoughts about patent reform in the 116th Congress, where the America Invents Act went wrong, and how we ensure the U.S. patent system is restored to number one.
n an age with instantaneous commentary on social media, the wheels of justice in courts seem to move at a glacial pace, especially in patent infringement lawsuits in the fast-paced smartphone industry. Yet, courts have been methodically receiving and meticulously reviewing the evidence in Qualcomm’s lawsuits against Apple Computer for infringing its patents. And, like the tortoise who eventually wins over the speedy hare, the judgments are just now coming out against Apple. This past December, a Chinese court issued a preliminary injunction against Apple selling iPhones that infringed Qualcomm’s patents. A week later, A German court issued an injunction against Apple selling iPhones in that country that infringed Qualcomm’s patents. Last week, a jury in the United States found Apple liable for infringing Qualcomm’s patents and awarded Qualcomm $31 million in damages.
A number of organizations, including Ericsson, Nokia, Philips, Qualcomm, the Innovation Alliance and the Licensing Executives Society, have sent two separate letters to U.S. Attorney General William Barr, USPTO Director Andrei Iancu, and Secretary of Commerce Wilbur Ross stating their support for the United States’ decision to withdraw the Department of Justice, Antitrust Division’s assent to the 2013 joint DOJ-U.S. Patent and Trademark Office “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” (the 2013 Joint Policy Statement). The letter sent by Ericsson, Nokia, Philips, and Qualcomm begins by explaining that those signing the letters collectively spend many billions of dollars annually to “the development of cutting-edge that substantially contribute to the social welfare and quality of life of U.S. consumers,” and “and employ tens of thousands of people in the U.S.” The letter goes on to explain that injunctions are necessary to address the widespread patent infringement that has occurred in recent years; infringement that risks innovators’ ability to continue to innovate and create next generation technologies. Without property protections it is economically irrational to invest the billions of dollars required to create cutting-edge technologies.
The Federal Circuit recently reversed a decision of the Patent Trial and Appeal Board (Board) finding claims of a patent owned by PersonalWeb Technologies, LLC to be invalid. Apple, Inc. (Apple) petitioned for inter partes review (IPR), and the Board found certain claims of the patent to be invalid as obvious in light of two references. The Federal Circuit reversed, holding the Board provided insufficient evidence to support a finding of inherency. Pers. Web Techs., LLC v. Apple, Inc., No. 2018-1599, 2019 U.S. App. LEXIS 6919 (Fed. Cir. Mar. 8, 2019) (Before Moore, Taranto, and Chen, Circuit Judges) (Opinion for the Court, Chen, Circuit Judge).
This week in Other Barks & Bites: the U.S. Patent and Trademark Office promotes Scott Boalick to Chief Judge of the Patent Trial and Appeal Board (PTAB); the agency also announces a new pilot program for motions to amend at the PTAB; India’s Cabinet votes to bring trademark and industrial design law into accord with international standards; a trial date is set in the copyright case brought by the heirs of Marvin Gaye against Ed Sheeran; a Southern California district judge rules that a Dr. Seuss/Star Trek mash-up is a transformative fair use; Apple alleges that someone has tampered with a key witness in the Qualcomm patent infringement case; and UK finance ministers issue a report calling for more antitrust activity against American tech giants, including Facebook and Google.
The first decision issued by the new USPTO Precedential Opinion Panel (POP) tackled the difficult issues of statutory interpretation of sections 35 U.S.C. § 315(b) and 35 U.S.C. § 315(c). In sum, the Board determined that both same party and issue joinder is proper in inter partes reviews (IPRs). The Board also determined that otherwise time-barred petitions are proper when accompanied by a joinder request to a pending IPR. The Board interpreted the statute in a manner to maintain broad discretion for the Agency. The POP could have properly interpreted Section 315(c) by first focusing on the statutory language “join as a party” as being limited to any person not already a party. Instead, the decision dismissed this viewpoint and stated that “the statutory phrase ‘any person’ broadly applies to the phrase ‘join as a party’.” Although I disagree with the emphasis on “any person,” I anticipate that the Board’s reasoning on both same party and issue joinder would be upheld as proper statutory interpretations by the Federal Circuit, if appealed.
In September 2018, the United States Patent and Trademark Office (USPTO) announced the substantial revision of Standard Operating Procedures (SOPs) for the paneling of matters before the Patent Trial and Appeal Board (PTAB) (SOP1) and precedential and informative decisions (SOP2), based upon feedback the Office received from stakeholders, courts, legislators, and six years of experience with America Invents Act (AIA) trial proceedings. Now, the USPTO’s Precedential Opinion Panel (POP)—which includes USPTO Director Andrei Iancu, Commissioner for Patents Drew Hirshfeld, and Acting Chief Administrative Patent Judge Scott Boalick—has issued its first ever decision, holding that a petitioner may be joined to a proceeding in which it is already a party; that the Board has discretion to allow joinder of new issues in an existing proceeding; and that the existence of a time bar under 35 U.S.C. § 315(b) is one of several factors to consider when exercising this discretion. Despite that guidance, the POP emphasized that such discretion should be used only in limited circumstances, “namely, where fairness requires it and to avoid undue prejudice to a party.” Because the instant request for joinder was filed as a result of Petitioner’s errors, the Board dismissed the IPR petition, noting that “there are no fairness or undue prejudice concerns implicated, and the Petition is otherwise time-barred under § 315(b).”
In an expected move, Huawei filed a lawsuit against the United States in the U.S. District Court for the District of Texas on March 6. Huawei Technologies v. U.S., 4:19-cv-00159, U.S. District Court, Eastern District of Texas (Sherman). In its mammoth 54-page complaint, the company alleges the United States and its agencies violated the Federal Constitution when it singled out Huawei in the 2019 National Defense Authorization Act (NDAA). U.S. authorities are concerned that China could use Huawei’s equipment to spy on communications networks. Having offices in Plano, Huawei had jurisdiction to file in the Eastern District of Texas, widely recognized as a plaintiff-friendly court for technology matters. But despite its considerable resources and legal muscle, Huawei will have a challenging time proving its case in court.
The Electronic Frontier Foundation (EFF) is at it again, this time with what they refer to as a Save Alice campaign. The EFF does not like the Revised Patent Eligibility Guidance published by the United States Patent and Trademark Office (USPTO) in January 2019 and is charging USPTO Director Andrei Iancu with attempting to subvert the United States Supreme Court and essentially ignore Alice v. CLS Bank. These assertions are bogus, and truthfully, they are hardly worth the consideration of thoughtful individuals interested in a meaningful dialogue about the state of the U.S. patent system. Director Iancu has issued guidance that strictly follows exactly what the Supreme Court ruled in Alice, period. Over the years patent examiners, Administrative Patent Judges, district courts, and the Federal Circuit have dramatically expanded Alice. It was admitted in Alice that the “invention” could be coded over a weekend by a second-year college student, which means it was extremely trivial and not innovative.
This week on Capitol Hill, both houses of Congress are abuzz with a full schedule of hearings related to science, technology and innovation topics. In the House of Representatives, various committees explore a proposed net neutrality bill, innovation in the aviation industry, and ways to improve competition in the pharmaceutical industry—a hot topic of debate in recent weeks. Both the House and the Senate will hold hearings on the future of America’s space program. The Senate will also consider consumer data privacy regulations, rural broadband investments, and military applications of artificial intelligence. On Tuesday, a pair of events at the Brookings Institution will look at the impact of technological advances on public policy, as well as the artificial intelligence race between the U.S. and China.
In a previous essay, I discussed a U.S. Supreme Court case that had nothing to do with patent law, but that patent practitioners may wish to note. That discussion pertained to a decision indicating that constitutional arguments ought to be preserved before an administrative agency?such as the United States Patent and Trademark Office?even if the agency lacks the jurisdiction to decide constitutional questions on their merits. In this essay, I turn to one of the most humorous Supreme Court decisions in recent years. Even though this case seems far removed from patent law, it may hold a serious lesson for patent practitioners.