Posts Tagged: "technology"

The European Commission (EC) is at it again, threatening to regulate standard essential patent (SEP) licensing relationships, despite a lack of evidence that such regulation is appropriate. The economically harmful nature of this regulatory framework (and its prior draft) has been highlighted by many expert commentators, including contributors to IPWatchdog (see here, here, and here) and Truth on the Market (see here and here). Fortunately, the EC’s proposed regulatory framework is still open for public comments. Mindful of that opportunity, on May 23, Mercatus Center scholars Christine McDaniel, Satya Marar, and I filed a public interest submission with the European Commission, focusing on three sets of problems posed by the framework. I summarize our submission below.

On  April 3, 2023, the UK Intellectual Property Office (UKIPO) issued much needed guidance on how digital goods and services – namely non-fungible tokens (NFTs), virtual goods, and services provided in the metaverse – should be classified for trademark purposes. NFTs The UKIPO defines an NFT as “a unique unit of data (the only one existing of its type) that…

In response to last week’s hearing of the House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet about the impact of artificial intelligence (AI) on copyright law, former Copyright Office General Counsel, Jon Baumgarten, submitted a letter this week to the Subcommittee expressing his concerns with the testimony of one of the witnesses, Sy Damle of Latham & Watkins, who also formerly served as U.S. Copyright Office General Counsel. The letter was published in full on the Copyright Alliance website.

Previously, we wrote about how alleged concerns of “hold-up” and a lack of “transparency”, two non-legal terms without accepted definitions, are being used to advocate for special rules applicable to patents subject to declarations regarding Fair, Reasonable and Non-Discriminatory (FRAND) licensing. These vague concepts are specifically chosen to obfuscate the real issues impacting FRAND licensing and used in an effort to shift traditional burdens of proof, regulate behavior previously found not to violate antitrust / competition law, and rewrite the express language of the commitment made by patent owners to the European Telecommunications Standards Institute (ETSI). The European Commission (EC) is the latest bull to enter the FRAND licensing China shop.

Real estate data firm CoStar and real estate digital marketplace CREXi are currently engaged in a high-profile intellectual property fight. Costar, which runs Apartments.com, alleges that CREXi is violating the Digital Millennium Copyright Act (DMCA) by using its images on Crexi.com without regard to its terms of service. The company has gone so far as to say that “CREXi is attempting to build its own online commercial real estate marketplace and auction platform by free-riding on CoStar’s billions of dollars of investments and the thirty-plus years of hard work by CoStar’s employees.” CrEXi, on the other hand, argues that all the images on the site are uploaded at brokers’ (not CrEXi’s) direction and thus the company can’t be held liable for IP violations. 

The House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet today held the first of several planned hearings about the impact of artificial intelligence (AI) on intellectual property, focusing in this initial hearing on copyright law. The witnesses included three artists, a professor, and an attorney with varying perspectives on the matter, although the artists all expressed similar concerns about the potentially dire effects of generative AI (GAI) applications on their respective industries and careers.

Bacon is delightful. And the similarly savory subject of who must be named inventor on a bacon patent was the issue in the recent case of HIP, Inc. v. Hormel Foods Corp., No. 2022-1696 (Fed. Cir. May 2, 2023). HIP claimed that one of its employees materially contributed to the invention of Hormel’s patent on methods for precooking bacon. The question of what makes one an “inventor” was central to whether HIP’s employee should be added to the patent. More broadly, questions about inventorship and authorship have become central to recent commentary and speculation about the impact of artificial intelligence (AI) on intellectual property law. While AI did not factor into HIP v. Hormel, the decision provides a useful reminder about the role of the common law in developing answers to these momentous questions.

You have to give them credit. The Department of Energy (DOE) bureaucracy doesn’t give up. For more than 40 years, they’ve been resisting the Bayh-Dole Act’s mandate cutting Washington out of micro-managing the commercialization of federally funded inventions. And under the guise of increasing domestic manufacturing, they’re well on their way to reasserting control. Before 1980, federally funded inventions were strangled under laborious case by case reviews to determine whether ownership would be waived from government agencies to the inventing organization. As a result, few inventions were ever developed. Bayh-Dole cut the Gordian knot, mandating that universities, contractor operated federal laboratories and small companies could own and license their discoveries. American innovation took off, and we regained our lead over our foreign competitors.

The issue of AI inventorship in the United States remains at large following the Supreme Court’s denial of cert in Thaler v. Vidal, meaning that the U.S. Patent and Trademark Office (USPTO) finding that AI cannot be considered a named inventor to a patent application remains the law of the land. Now that the agency is seeking public comments on the issue of AI inventorship, I reached out to Dr. Thaler to get his comments on the current AI inventorship debate within the patent space.

On Tuesday, the European Patent Office (EPO) announced the 12 inventors and inventor teams that have been selected as finalists for the 2023 European Inventor Award. The EPO placed three finalists each into four groups: Industry, Research, SMEs, and Non-EPO Countries. Members of the public can vote for the winner on the EPO’s website. The finalists hail from 12 countries, Australia, Austria, Belgium, China, Finland, France, Germany, Iceland, India, Ireland, Italy, and the United States. An independent jury of former European Inventor Award finalists used their expertise to select this year’s finalists.

Generative Artificial Intelligence (GAI) promises to improve information gathering and reduce costs in a myriad of economic processes. Since patent law is essentially about recording and accessing information, tools like ChatGPT are great candidates to ease the tasks of patent professionals. As of today, it is not possible to trust GAI tools with confidential information, since any prompt provided to these tools does not guarantee confidentiality and data protection, unless an entity creates its own sandbox with customized implementations that protect the data.

The story seems to unfold the same way every time, whether the actor is a high-level departing employee or a customer or business partner. When sharing confidential information in a long-term relationship results in the release of a similar product by the recipient, the reaction is a claim of theft, laced with accusations of treachery and betrayal. And the response is equally strong: “no, I did this on my own”; in legal terms, “I engaged in ‘independent development.’” Strictly speaking, this means that the development of the new product was accomplished “independently” of the information shared in the confidential relationship. As a practical matter, this can be difficult to prove. Once you have been exposed to the secret process or design, or other related information, how do you demonstrate that your work was entirely your own?

On April 27, a pair of legal measures were advanced within the European Union that promise to greatly impact the state of technological commercialization within Europe for both standardized and artificial intelligence (AI) technologies. While political leaders in the EU maintain that either proposal addresses consumer safety and competition concerns, multiple commentators have pointed out issues that could slow the rate of technological commercialization to the detriment of Europeans across the continent.

The United States Trade Representative (USTR) released its annual Special 301 Report on April 26, adding two countries to the “Watch List”: Bulgaria and Belarus. In total, there are now 29 countries on either the Priority Watch List or Watch List, up from 27 last year. Belarus was added because it passed a law that “legalized unlicensed use of certain copyrighted works if the right holder is from a foreign state ‘committing unfriendly actions.’” This includes the U.S. sanctions imposed on Belarus for its support of Russia’s invasion of Ukraine. “