Posts in Technology & Innovation

Patent Experts Urge Kanter to Reject Calls to Scrap Avanci Business Review Letter

A group of 25 experts in intellectual property law sent a letter to Assistant Attorney General (AAG) Jonathan Kanter today in support of a business review letter that the group said, “represented a legally sound and evidence-based approach in applying antitrust law to innovative commercial institutions.” The letter is also a response to an earlier letter sent to Kanter on October 17, 2022, by 28 former government enforcement officials, professors, and public interest advocates that urged the AAG to reconsider the business review letter. The Avanci business review letter was published by the Antitrust Division of the U.S. Department of Justice on July 28, 2020. In the letter, the DOJ said that Avanci’s licensing platform, which plans to license patent claims declared essential to implement 5G in cars, did not harm competition in the industry. Business review letters represent guidance by the DOJ to inform businesses how to best coordinate their practices to ensure they don’t violate antitrust laws.

USPTO, Copyright Office Joint Study on NFTs Could Help Dispel Confusion About IP Ownership in Media Content Underlying Digital Assets

On November 23, the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office published a joint notice of inquiry in the Federal Register announcing that the two agencies would be collaborating on a study regarding intellectual property legal issues related to digital assets known as non-fungible tokens (NFTs). The announcement follows the dramatic rise in mainstream attention on NFTs due to their wildly fluctuating value, which has in turn created a great amount of confusion surrounding IP rights to NFTs and the underlying digital files used to create them.

SEPs in Europe: From Huawei/ZTE to Apple/Optis, Europe Has Become a Friend to Patentees

During IPWatchdog’s Standards, Patents & Competition Masters 2022 program last week, one panel examined the standard essential patent (SEP) landscape in Europe, which has become decidedly more patent owner friendly than that of the United States in recent years. Beginning with the landmark 2015 decision by the European Court of Justice in Huawei v. ZTE, ([2015] EUECJ C-170/13), European courts have held SEP holders and implementers to account by applying the framework set forth in that ruling, which panelist Inna Dahlin of Valea AB summarized for attendees.

Advice from the SEP Masters: Rely on the Data, Engage with Courts and Regulators, Be Wary of Calls for Special Tribunals

IPWatchdog held its Standards, Patents and Competition Masters ™ 2022 Program this week, November, 14-15, in Ashburn, Virginia, covering topics from how to define “fair reasonable and non-discriminatory” (FRAND) rates to litigating standard essential patents (SEPs) in South America and Europe. Almost all of the panels touched on how courts around the world are viewing the practices of implementers and patent holders in the SEP debate and how standoffs between implementers and patent owners in FRAND cases can be better resolved.

With Decision Looming on Extension of TRIPS IP Waiver, House Dems Want More Info, Industry and Advocacy Groups Battle for Public Narrative

On November 10, a group of Democratic members of congress sent a letter to United States Trade Representative Katherine Tai expressing concerns about extending a waiver of intellectual property rights under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement to therapeutics and diagnostics for the treatment of COVID-19. The letter comes as talks are heating up at the World Trade Organization (WTO) about such an extension, with the technical deadline for a decision being December 19. The letter poses seven questions for Tai to consider and respond to as she formulates the U.S. position on waiver extension, including whether the current waiver of IP rights for vaccine-related technology has been effective, how “diagnostics” and “therapeutics” will be defined, and that she provide a list of countries that have expressed interest in gaining access to American IP for COVID-related diagnostics and therapeutics.

In Defense of Patentability of Mathematical Formulas and Relationships

“Mathematical Formulas and Relationships” fall under the “Abstract Idea” exception to the categories of patentable subject matter. Characterizing the “Mathematical Formulas and Relationships” as “Abstract Ideas” has led to misrepresentation of mathematical concepts in patent law. A “Mathematical Formula or Relationship” is a means of expression and should be inspected to extract what it expresses. Next, the content that is being expressed may be evaluated to determine whether the “Mathematical Formula or Relationship” is expressing a “Tool” or a “Model,” both of which are used for building machines and devising technological processes and neither of which needs to be categorically excepted from patentability.

We Need an Open-Source Approach to Weed Out Bad Quality Patents

Much has been written about patent quality. But many authors approach this problem with a bias against the very idea of a patent system. These critics would “solve” the patent quality problem by cutting down the total number of issued patents rather than focusing on problem patents. They suggest increasing examiners and examination time will weed out bad quality patents. And this might throw up additional roadblocks to inventors obtaining a patent by increasing the time and cost of securing an allowance. But this does not necessarily improve patent quality. Instead, it merely reduces the total number of patents issued. Rather than “more examination,” solutions to the patent quality problem need to focus on “better examination.” In theory, “better examination” should stop invalid claims from ever getting issued while simultaneously streamlining allowance for valid claims.

Lawmakers Aim a Triple Whammy at American Innovation

Last week, the Bayh-Dole Coalition held a webinar titled “The Three-Pronged Attack on U.S. Innovation and Intellectual Property.” Before we consider each prong, it’s worthwhile reflecting on a larger point. Each would deal a body blow to American innovation just as we struggle to keep the economy on track. And each would be a self-inflicted wound that must have our foreign rivals shaking their heads at our folly.

Mexico and Switzerland Question Need for Extension of COVID IP Waiver

A communication from the governments of Mexico and Switzerland to the World Trade Organization’s (WTO’s) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) on Tuesday raised a number of questions about the prospect of extending a waiver of intellectual property (IP) rights for COVID-19 vaccine technologies to therapeutics and diagnostics. The Council met informally in September to discuss the extension, which technically has a deadline of December 19, six months after the Ministerial Conference decision finalizing a waiver on “patented subject matter required for the production and supply of COVID-19 vaccines” only. The final agreement contemplated extending the waiver to “the production and distribution of COVID-19 diagnostics and therapeutics” within six months of adoption.

Overbroad State Right-to-Repair Bills Would Violate Federal Copyright Law

The right-to-repair movement has been making strides in recent years, as many states are now contemplating bills that would require electronic device manufacturers to make their parts, tools and know-how available to device owners and independent repair shops. While the goal of expanding repair opportunities for consumers is certainly laudable, repair advocates are pulling a fast one when it comes to the federal copyright law implications of their preferred state legislative solutions. As Professor Adam Mossoff and I explain in a new Hudson Institute policy memo, these proposed state right-to-repair bills are unconstitutional on their face because they directly conflict with the rights secured to authors under the federal Copyright Act. They are also the wrong policy since they would upset the legal and policy foundations that have led to the unprecedented success of today’s thriving digital marketplace. States should not waste valuable time and resources on harmful right-to-repair bills that will be struck down when they are inevitably challenged.

U.S. Copyright Office Backtracks on Registration of Partially AI-Generated Work

On October 28, Kristina Kashtanova, an artist and artificial intelligence (AI) consultant and researcher, received notice from the U.S. Copyright Office (USCO) that the registration for the first issue of her partially AI-generated graphic novel, Zarya Of The Dawn, may be canceled. A month earlier, on September 15, the USCO issued a registration for Kashtanova’s work, which was subsequently widely publicized as the first known instance of an AI-generated work being successfully registered with the USCO. In the USCO’s recent communication, “I was asked to provide details of my process to show that there was substantial human involvement in the process of creation of this graphic novel,” Kashtanova explained by email. When asked to confirm the potential cancellation for Kashtanova’s registration, the USCO provided a written statement saying…“Copyright under U.S. law requires human authorship. The Office will not knowingly grant registration to a work that was claimed to have been created solely by machine with artificial intelligence.”

P.S., I Don’t Love You: UK Court Delivers Blow to Apple in FRAND Fight with Optis But Laments ‘Dysfunctional’ SEP Dispute System

The England and Wales Court of Appeal this morning said that Optis Cellular Technology is entitled to an injunction before a lower court has set fair, reasonable and non-discriminatory (FRAND) terms for a license to Optis’ standard essential patents (SEPs) if Apple refuses to take a court-determined FRAND license. But in a post script to the ruling, Lord Justice Arnold said both Apple’s appeal and Optis’s cross-appeal “illustrate yet again the dysfunctional state of the current system for determining SEP/FRAND disputes” and that the European Telecommunications Standards Institute (ETSI) and other standards development organizaitons (SDOs) should “make legally-enforceable arbitration of such disputes part of their IPR policies” to curb the problem.

Presenting the Evidence for Patent Eligibility Reform: Part IV – Uncertainty is Burdening Litigants and Courts, Threatening U.S. Competitiveness and National Security

The current unreliability of patent-eligibility law, documented thus far here, here and here, has also created undue burdens on litigants and the courts. In this final installment, we detail how the current unreliability burdens litigants and the courts and how it is a fundamental threat to U.S. competitiveness and national security. Patent infringers now routinely raise Section 101 as a defense, often merely as a strategy to complicate and prolong the litigation, rather than as a good-faith defense with a likelihood of success. For example, one analysis found that, from 2012 to 2014 (when Alice was decided), Section 101 was raised in just two Rule 12(b)(6) motions across the country each year. In the year after Alice, that number rose to 36 motions, and by 2019, accused infringers were filing over 100 such motions each year.

BIO and Vaccine Manufacturers Group Sign on to Berlin Declaration on Vaccine Access

Two major trade organizations representing global vaccine manufacturers are officially backing a proposal submitted to the G20 and G7 countries in July that they claim offers practical solutions for future pandemics to avoid the inequities that have been highlighted by the COVID-19 pandemic. The Berlin Declaration was proposed in July 2022 by the International Federation of Pharmaceutical Manufacturers & Associations (IFPMA) and calls on industry to commit to “reserve an allocation of real-time production of vaccines, treatments and diagnostics for priority populations in lower income countries and take measures to make them available and affordable.”

People’s Vaccine Alliance Report Condemns Big Pharma’s IP Stance

The People’s Vaccine Alliance, a coalition of over 100 organizations, issued a statement this week alleging that the pharmaceutical industry is attempting to tighten its control of the world’s pandemic response plans. In the statement, the organization argues that “enshrining pharmaceutical companies’ demands in a pandemic treaty or other pandemic preparedness plans would normalize global inequalities and tie the hands of governments in future health crises.” The Alliance released the statement in response to the International Federation of Pharmaceutical Manufacturers & Associations’ (IFPMA) July statement titled the Berlin Declaration – Biopharmaceutical Industry Vision for Equitable Access in Pandemics during the World Health Summit, where stakeholders from politics, science, the private sector, and civil society gathered in Berlin from October 16-18.