Kevin Madigan

Five years after the last of the four decisions in patent eligibility doctrine by the Supreme Court—creating what is now referred to as the Alice-Mayo framework—the impact of this upheaval in the patent system has become even more clear. Ongoing court decisions and new data confirm that the Alice-Mayo framework has wrought an unsettling revolution and sowed uncertainty in what former U.S. Patent and Trademark Office (USPTO) Director David Kappos has referred to as the “the greatest innovation engine the world has ever known.” As policy debates on subject matter eligibility ramped up this past year, it is time to return back to the original dataset created by Robert Sachs and David Kappos that we presented in Turning Gold to Lead and provide an update.

Jenna Close is a freelance commercial photographer and owner of a small business that licenses still images and videos to both domestic and international clients. She and her partner work 60-80 hours a week booking work, shooting, billing, accounting, marketing, and continuing to develop and maintain their skills. Jenna’s images are widely infringed online. She’s found exact reproductions of her work on competitors’ websites, on websites falsely advertising that the photographs are free to use, and she’s even come across instances where companies have photoshopped their own products into her images. Despite the brazen misuse of her images that she frequently encounters, Jenna does not generally pursue claims against her infringers because it is too expensive and time consuming to do so. It’s just not worth the cost—even though she registers at least some of her images for copyright protection, and so would be entitled to statutory damages and attorneys’ fees with respect to those images in case of a court victory. Unfortunately, Jenna’s story is not unique. For countless individual artists and small businesses, combating the unauthorized use of their creative works online is a source of enduring frustration. The frequency and ease with which photographs, sound recordings, videos, and other works of authorship are shared on the Internet leaves those without significant time and resources little recourse when they encounter infringement. But now, after years of advocacy by creators like Jenna, new legislation promises long-overdue support for these marginalized groups in the ongoing fight against overwhelming infringement in the digital age.

Patent offices are failing to keep up with the growth of the innovation economy and the resulting increase in patent applications. Unfortunately, the problem could easily get worse in coming years. Many patent offices apparently have yet to process applications from recent years, when huge increases in applications have occurred. It’s a problem that threatens to undermine the global patent system, but what’s both encouraging and discouraging by turns is that it’s largely a basic problem of good governance. Many of the solutions to the problem are relatively straightforward. They require the application of sufficient resources and a willingness to hire an appropriate number of examiners and share work between patent offices. These solutions are a matter of political will and effective management, rather than complex policy. Some countries have shown the will to turn things around, and we hope others will follow.

After nearly twenty years with the DMCA, the Copyright Office has launched a new study to examine the impact and effectiveness of this system, and voices on both sides of the debate have filed comments expressing their views. For the most part, frustrated copyright owners report that the DMCA has not successfully stemmed the tide of online infringement, which is completely unsurprising to anyone who spends a few minutes online searching for copyrighted works. Unfortunately, some commentators are also pushing for changes that that would make things even more difficult for copyright owners.