Standard-documentation from online sources maintained by standard setting organizations (SSOs) is usually an important source of relevant prior art. Such prior art can include technical specifications, technical reports, change requests, liasioning statements, work item descriptions, study documents, recommendations and RFCs. However, accessing this documentation available in SSO websites is often not easy.

The U.S. Supreme Court today heard oral arguments in Abitron Austria GmbH v. Hetronic International, Inc., which asks the Court to consider whether the U.S. Court of Appeals for the Tenth Circuit erred in applying the Lanham Act extraterritorially to Abitron’s foreign sales, “including purely foreign sales that never reached the United States or confused U.S. consumers.” The Justices struggled with the appropriate reach of the Lanham Act and whether reversing the Tenth Circuit would require overruling Steele v. Bulova Watch Co., 344 U.S. 280, 282-285 (1952), but overall seemed to be considering the need for a new or narrowed test to account for the realities of modern commerce.

Today, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) published a Patient Access Report profiling the many ways in which drug pricing controls, often enacted in the name of ensuring widespread access to low-cost medicines, actually result in less access to innovative medicines that are more widely available in free markets. The GIPC’s report comes at a time during which the Biden Administration has taken recent action on drug pricing provisions included in the Inflation Reduction Act passed into law last August, which could have deleterious effects on patient access in the United States.

In Part I of this two-part article, we provided an analysis of the Wi-Fi 6 litigation and technology landscape. This Part II discusses important changes to the IEEE rules governing the reasonable and non-discriminatory (RAND) licensing encumbrances on SEPs held by participants in IEEE standardization work. Unfortunately, these rule changes fall short of clarifying what RAND means for Wi-Fi licensors and implementers. Instead, fueled by Wi-Fi 6’s growing valuation and adoption of heavily patented core technologies from LTE and 5G, the rule changes arguably will only heat up the current litigation trend.    

Faegre Drinker’s Patent Prosecution team is actively recruiting for a full-time Patent Associate to join the Intellectual Property group in our Chicago, IL, Denver, CO, Fort Wayne, IN, Indianapolis, IN, Minneapolis, MN, Philadelphia, PA, Washington, DC, or Wilmington, NC, offices. Successful candidates should have 1-3 years of experience drafting patent applications. A background and degree(s) in Mechanical, Biomedical, Chemical, or Electrical Engineering is preferred. Backgrounds in chemistry, physics, optics, material science, or other applicable technical experience will be considered. Candidates must be collaborative and motivated to succeed in a client-focused, team-oriented environment. Candidates must also have excellent academic credentials and have strong written and oral communications skills.

For well over a year, Senator Elizabeth Warren (D-MA) and some members of Congress have engaged in a campaign to urge the Health and Human Services Secretary Xavier Becerra to break patents on pharmaceuticals to lower drug prices by invoking a century-old statute, Title 28 of the U.S. Code 1498. This is their “game plan”: HHS should contract with generic drug companies willfully to infringe pharmaceutical patents, thereby requiring any damages to be paid from public funds. This strategy took a new tack in early March 2023, when the Biden Administration’s Justice Department filed a surprise “Statement of Interest” in a private lawsuit on behalf  “the Government and its Department of Health and Human Services and the Department of Defense.” The case, filed in Delaware federal court, was initiated by Arbutus Biopharma and Genevant Sciences, which allege that that patents they own were infringed by Moderna in producing its version of the COVID-19 vaccine.

This week in Washington IP news, the Senate Committee on Health, Education, Labor, and Pensions will question the CEO of Moderna about the company’s potential price hike of the COVID vaccine. In the House, the Committee on Foreign Affairs will hear from Secretary of State Antony Blinken on competition with China. Elsewhere, the Hudson Institute is holding an event one day before the Supreme Court hears oral arguments in a case that could have big implications for trademark law.

Recently, ChatGPT (Generative Pre-trained Transformer), an artificial intelligence (AI) chatbot program developed by OpenAI, has become a popular topic, attracting much attention and discussion. Its applications in the fields of natural language processing and text analysis have been well documented and have aroused great interest. It can be used to generate various language models, such as natural language texts, dialogues, and question-answering. It is currently one of the most advanced and efficient technologies in the language field. ChatGPT has a wide range of applications. In fields like medical, financial, legal, and media, ChatGPT can also be used to generate and analyze text data, thereby improving work efficiency and accuracy. Recently, the technology has even been used in the realm of intellectual property, with some having used it to draft patent applications.

Lenovo has been ordered 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, in the second full FRAND trial to be decided by the UK courts, following the landmark Unwired Planet case. (Interdigital Technology Corporation & Ors v Lenovo Group Ltd (FRAND Judgment – Public Version) [2023] EWHC 539 (Pat).) In his redacted judgment published on March 15, Mr. Justice Mellor found that neither InterDigital’s August 2021 license offer (which amounted to $337 million) nor Lenovo’s counter offer (which comprised a lump sum of $80 million +/-15% for all sales in the six-year term to the end of 2023 with a full release for all past sales for no additional consideration) were FRAND or within the FRAND range.

Wi-Fi 6 shares new technologies with LTE and 5G that are subject to heavy patenting. The firms and institutions that currently monetize their standard essential patents (SEPs) against LTE and 5G will likely be looking to increase their royalty income from Wi-Fi 6 and 6e. This could mean that the recent disputes over LTE and 5G standardization participants’ fair, reasonable, and non-discriminatory (FRAND) SEP licensing commitments will spill over into Wi-Fi. Current Wi-Fi litigation trends suggest that this is already afoot, and the recent licensor-friendly changes in the IEEE IPR rules are feared to only fuel this trend.

This week in Other Barks & Bites: The UK High Court delivers a key ruling on standard essential patents (SEPs) in a FRAND battle between InterDigital and Lenovo; the U.S. Patent and Trademark Office updates Patent Term Extension listings to add Food and Drug Administration and Department of Agriculture information following collaboration initiatives; the U.S. Copyright Office (USCO) launches a new plan to tackle AI’s impact on copyright law and policy; a Miami nightclub attempts to block LIV Golf’s trademark applications; and the U.S. Court of Appeals for the Federal Circuit (CAFC) rules in favor of Apple in its ongoing dispute with the USPTO.

Just over the mountain of Patent Eligibility Reform awaits The Thiefdom of Efficient Infringers. No other intellectual property criminal enjoys the legal immunities and protections that the patent thief enjoys. Other intellectual property criminals – the copyright infringers, the trademark infringers, and the trade secret thieves – all are subject to both civil and criminal liability, just like every other common criminal. But not the patent thieves. This one type of intellectual property criminal gets favored treatment and special protections under the law. Why is this?

Whether or not the law recognizes a machine as the inventor-at-law, the facts are indispensable to determination of the true inventor-in-fact. In the case of Stephen Thaler’s attempt to obtain patent protection for a food container and light stick he says were independently invented by his AI machine, DABUS, the inventor-in-fact will be either Thaler or his machine. The procedural posture of Thaler v. Vidal caused the discourse to jump over the facts of how the food container and the light stick were invented by DABUS. These overlooked facts may reveal the true inventor, regardless of whether or not the type of inventor is recognized by the current law. 

On March 9, e-commerce company Ingenio Inc. filed a petition for writ of certiorari with the U.S. Supreme Court asking it to take up an appeal of a decision last August by the U.S. Court of Appeals for the Federal Circuit in favor of patent owner Click-to-Call Technologies. Ingenio’s petition asks the Supreme Court to overturn the Federal Circuit’s ruling that Ingenio was estopped from challenging the validity of patent claims that were denied institution during inter partes review (IPR) validity proceedings at the Patent Trial and Appeal Board.

Artificial Intelligence (AI) is providing enormous productivity and increased value in many applications. But AI is no panacea and is not yet sufficiently well developed to be precise or dependable everywhere. For example, much better AI training data is required to reliably estimate patent essentiality to standards such as 4G and 5G, where AI is being advocated by various experts and has already been adopted by one patent pool. There is also a lot of room for improvement in inferencing.