Posts Tagged: "intellectual property"

The U.S. National Science Foundation (NSF) announced today that it is launching the National Artificial Intelligence Research Resource (NAIRR) pilot, as directed by President Biden’s Executive Order on AI in October 2023. The U.S. Patent and Trademark Office (USPTO) is one of 10 government agencies that are partnering with NSF on the pilot. Biden’s October Executive Order (EO) announced a series of new agency directives for managing risks related to the use of artificial intelligence (AI) technologies, prioritizing risks related to critical infrastructure, cybersecurity and consumer privacy. The EO in part directed NSF to launch a pilot for NAIRR within 90 days, which it said was “consistent with past recommendations” of a task force on the subject.

U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal on Monday made public an order from December awarding VLSI Technology LLC $413,264.15 for “time spent addressing OpenSky’s abusive behavior” in a years-long and circuitous case between the two companies. Vidal first issued her precedential Director review ruling in October 2022, holding that inter partes review (IPR) petitioner OpenSky Industries, LLC abused the IPR process in its conduct with patent owner, VLSI Technology LLC, and sanctioning OpenSky by excluding it from the IPR proceedings by relegating it to be a “silent understudy” in the proceedings and “temporarily elevating Intel to the lead petitioner.”

The Senate Judiciary Committee’s Subcommittee on Intellectual Property today held a hearing featuring eight witnesses who testified about the need to restore certainty to U.S. patent eligibility law. Most, but not all, agreed such a need exists and urged quick passage of the Patent Eligibility Restoration Act of 2023 (PERA). Senators Chris Coons (D-DE) and Thom Tillis (R-NC) introduced PERA in June of last year. The bill would eliminate all judicially-created exceptions to U.S. patent eligibility law.

First, my advice is that everyone should go to this upcoming William C. Conner Inn Annual Dinner and, for that matter, all the Inn’s annual dinners. I have enjoyed them on many levels. One of those is that you get to see and meet people you ordinarily would not, including judges, even if you often see judges. But this one on January 24 is special, because it has a background we hopefully won’t see again. When I received the Dinner announcement, I was shocked that the primary honoree is Chief Judge Moore of the U.S. Court of Appeals for the Federal Circuit. Why? Because of the way she has misled the public about her mistreatment of Judge Pauline Newman. The Inn states that the “Mission of the Hon. William C. Conner Inn is to promote excellence in professionalism, ethics (and) civility.” This is truly admirable, but one which must have been lost, overlooked, or ignored this year.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today denied Charles Bertini’s petition for a writ of mandamus asking the court to order the U.S. Patent and Trademark Office (USPTO) to decide his trademark cancellation case against Apple, Inc. According to Bertini, the cancellation case has been in limbo at the Trademark Trial and Appeal Board (TTAB) for more than three years, “despite [the TTAB’s] policy and frequent public statements by top USPTO officials that it decides cases after trial in approximately ten weeks.” Furthermore, a Petition to the USPTO Director filed on May 4, 2023, has yet to be decided, “despite the fact that most Petitions to the Director are decided in approximately two months.”

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).

The U.S. Supreme Court today granted a request by the U.S. Solicitor General to participate in oral argument as an amicus in Warner Chappell Music v. Nealy, which challenges a circuit court ruling that, under the discovery accrual rule, monetary damages for infringement under the Copyright Act are available for acts occurring outside of the Copyright Act’s three-year statute of limitations. The Solicitor General is urging the Supreme Court to affirm the lower ruling and uphold the Eleventh Circuit’s interpretation of the High Court’s ruling in Petrella v. Metro-Goldwyn-Mayer (2013) over competing interpretations in the Second Circuit.

The U.S. Supreme Court today denied certiorari to Diamond J Wholesale, LLC, who petitioned the Court in December 2023 to clarify how individual liability for willful trademark infringement by a corporation should be assessed. The U.S. Court of Appeals for the Eleventh Circuit in August 2023 backed a Georgia district court’s finding that Diamond and its owner, Raj Solomon, willfully infringed trademarks owned by Top Tobacco, L.P., Republic Technologies (NA), LLC, and Republic Tobacco, L.P. (Top Tobacco) for cigarette rolling papers. The ruling upheld an $11 million verdict in favor of the tobacco companies.

Artificial Intelligence (AI) is global, and copyright laws are national. Thus, some countries will have strict laws on making copies of copyrighted content to “train” an AI system while others will be more relaxed. Laws are about economics, and countries with more relaxed laws are likely to be countries with smaller creative industries and which wish to use the relaxed legal regime to attract AI investment. AI companies will use these jurisdictional differences as leverage to lobby for the relaxation of legal standards in countries with stricter laws.

As reported on IPWatchdog, the UK Supreme court recently ruled that a trained neural network (an Artificial Intelligence known as DABUS) could not be listed as the inventor on two patent applications filed by Dr. Stephen Thaler at the UK Intellectual Property Office (UKIPO). As a result, the two applications were treated as withdrawn for failing to comply with the requirements of the UK Patents Act 1977. This not a surprising decision for reasons that will be set out below, and it is consistent both with the earlier UK court decisions, and with the decisions of other jurisdictions around the world where Dr. Thaler has argued his case. The decision has, however, sparked interest in the questions of artificial intelligence and its ability both to “autonomously” devise inventions and to subsequently own them.

In the spirited world of whiskey, legal battles ferment in the form of trademark litigation. In the vast realm of whiskey production, where brands are as carefully crafted as the spirits themselves, clashes over trademarks have become common. The legal complexities swirling within the whiskey industry encapsulate the struggles of renowned manufacturers to protect the unique identities they have painstakingly cultivated for their whiskey brands. From the nuances of trade-dress like labelling and branding, to shape marks for detailed bottle designs, whiskey companies engage in multifaceted litigations to safeguard their trademarks.

At the end of 2023, Law 14,785/2023 was published in Brazil’s official gazette, creating a new regulatory framework for chemical pesticides and environmental control products. The result of decades of discussions in the National Congress, the new law brings provisions that represent improvements to the system, such as the mandatory use of risk analysis in the process of granting registration of products and the requirement to harmonize with internationally established standards.

Today, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in CyWee Group Ltd. v. ZTE (USA), Inc. affirming the Patent Trial and Appeal Board’s (PTAB) invalidation of CyWee’s 3D pointing device patent claims. In affirming the final written decision, the appellate court found that ZTE’s lack of adversarial nature in inter partes review (IPR) proceedings allowed LG Electronics, a joined party that was otherwise time-barred, to properly oppose CyWee’s motion to amend patent claims.

The Bayh-Dole Coalition yesterday submitted comments to the National Institute of Standards and Technology (NIST) asking the agency to withdraw the recently published Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights. The Coalition’s Executive Director, Joseph Allen, who authored the letter and formerly served as the Senate Judiciary Committee staffer to Senator Birch Bayh (D-IN), explained that “the framework would irreparably undermine one of the most successful laws in American history.” While Bayh-Dole contemplates march-in rights, the law strictly limits the situations in which such rights can be exercised and does not make any reference to pricing as a criterion for marching in. March-in requests have been rejected on a bipartisan basis multiple times since the bill became law and even then-Senator Joe Biden himself has opposed attempts to inject price controls into the law.

When I was in law school, my business associations professor began the semester by telling the class that debt and equity are essentially the same thing. In her view, both involve money going from one organization to another (i.e., the parties exchange “capital” or “debt”). And both are concerned with how the receiving organization will ultimately compensate its counterparty (i.e., do they get a fixed payment or a share of profits). From this perspective, debt and equity exist along the same continuum, with the primary difference lying in the allocation of risk between the parties through the distribution of control and economic rights. Litigation finance and insurance are quickly approaching a similar moment of conceptual and practical unity in which the dividing line between the two products is blurring and they are increasingly used together.