Posts in Licensing

Examining the Possibility of Compulsory Copyright Licensing for LLM Training

ChatGPT and similar generative artificial intelligence (AI) tools rely on large language models (LLMs). LLMs are fed massive amounts of content, such as text, music, photographs and film, which they analyze to discover statistical relationships among these inputs. This process, describe as “training” the LLMs, gives them the ability to generate similar content and to answer questions with seeming authority. The business community, and society at large, seems convinced that AI powered by LLMs holds great promise for increases in efficiency. But multiple lawsuits alleging copyright infringement could create a drag on development of LLMs, or worse, tip the competitive balance towards offshore enterprises that enjoy the benefits of legislation authorizing text and data mining. A lot seems to hang on the question of whether LLM training involves copyright infringement or instead is a fair use of copyrighted content.

HHS Denies Appeal of Xtandi March-In Petition as Comments Close on Proposed Framework

One day before comments closed on the Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights, published by the National Institute of Standards & Technology (NIST) and the Department of Commerce last month, the Department of Health and Human Services (HHS) denied an appeal of a decision not to march in on the blockbuster prostate cancer drug, Xtandi®.

Public Comments Reveal Widespread Unity in Opposition to NIST’s March-In Rights Framework

February 6 is the final day of the 60-day public comment period set by the National Institute of Standards and Technology’s (NIST) request for information on its draft interagency framework for exercising march-in rights under the Bayh-Dole Act of 1980. While lauded by drug pricing advocates, almost every other sector of the American economy has come out in opposition to the draft framework. Senator Thom Tillis (R-NC), the U.S. Chamber of Commerce and the Bayh-Dole Coalition have all publicly opposed NIST’s efforts to exercise legal authority for relicensing patent rights based on product pricing considerations.

G+ Communications v. Samsung: Splitting the FRAND Baby

A recent decision out of the Eastern District of Texas sheds further light on Judge Rodney Gilstrap’s interpretation of a patent owner’s commitment to the European Telecommunications Standards Institute (ETSI) pursuant to ETSI’s Intellectual Property Rights Information Statement and Licensing Declaration (“the ETSI Licensing Declaration”). The decision, however, also raises some questions for SEP owners. A little over a year ago, we considered how French and California law would interpret a patent owner ‘s commitment to ETSI pursuant to the ETSI Licensing Declaration. The in depth analysis can be found here, while a summary version published on IPWatchdog can be found here. At a high level, we considered the issue both from the perspective of performance being possible without implementer engagement, and from the perspective of performance requiring implementer cooperation.

The March-In Drug Price Control Narrative Crumbles While Its Damage to American Innovation Grows

It was little more than a month ago when the Biden Administration unleashed its draft guidelines for applying the march-in provisions of the Bayh-Dole Act. For more than 43 years, the law was implemented as written. Every Administration—including the Biden Administration—rejected repeated attempts to misuse the law so the government could license copiers when critics felt that a product based on a federally-funded invention was too expensive. This was mainly sought under the guise of lowering drug prices. Even though the Administration issued a stinging denial of the most recent attempt last March, in December it reversed course.

Navigating SEP Determination Challenges with Quality Claim Charts

When licensing standard essential patents (SEPs), the SEP licensor and the standard implementer (also known as the SEP licensee), go through two phases of negotiation. The first phase is the technical phase, followed by the second phase, the commercial discussion. In the technical phase, the SEP licensor must provide evidence that at least one patent of its portfolio is valid and standard essential. This is done by providing rigorously conducted claim charts that map claims against the standard’s sections, providing evidence that all claim elements read on the technical standard specification. Typically, only a few claim charts are needed in this first technical phase, since only one patent must be valid and essential to make the case that the standard implementing party is infringing. The second phase, the commercial discussion, is much more complex. Here, the SEP owner must provide evidence of the value of its SEP portfolio for a given standard supporting why the proposed royalty rate is FRAND (fair reasonable and non- discriminatory).