Posts Tagged: "patent policy"

Qualcomm was not refusing to abide by its agreed to promises to license SEPs as required by the SSOs, as alleged by the FTC. Instead, Qualcomm wasn’t interested in licensing competing chip makers who wanted to used Qualcomm’s technology so they could make their own chips incorporating Qualcomm’s patented technology. Licensing competing manufacturers of chips is not what the IP policies of the SSOs require. What is required is that patent owners of SEPs not discriminate against applicants desiring to utilize the license for the purpose of implementing the technology. But that isn’t what a competing manufacture would be doing. A competing manufacturer would be creating the chip that enables, not implementing the technology into an end product. In fact, as Qualcomm pointed out, industry practice of SSOs is to require licensing only fully compliant end-user devices, and not components.

Certain innovations—known as enabling technologies—provide the foundation for progress across a range of industries. Enabling technologies include mobile wireless, the laser, CT scanners, the microprocessor, artificial intelligence, and freight containerization. Such technologies drive wealth creation throughout the economy. However, the difficulties associated with monetizing this type of IP, which I explore in this article, mean that private enterprise tends to underinvest in new enabling technologies. Public policy needs to be more supportive, and firms need to be willing to support more blue-sky projects. As a nation, we are harvesting the fruits of old enabling technologies without investing sufficiently in new ones. We are eating our seed corn.

Assuming America wants paradigm-shifting, truly disruptive innovation we need to recognize the need to incentivize the risk-takers and those that provide the capital to those risk-takers who dare to challenge the status quo. This means policies, laws and rules that foster innovative activities from smaller entities who are most likely to innovate. With an eye toward policies, laws, rules and actions that would most benefit innovators, their endeavors more attractive to investors and more feasible to pursue, the U.S. should adopt policies, laws, rules and actions including…

The myopia associated with chasing quarterly earnings isn’t the only short-sighted predilection giant tech companies display. Affirmatively weakening the patent system in order to avoid upstart competitors who are lean, full of ideas, and willing to take risks to succeed is not just myopic, it is plain stupid. Sure, copying the work of others today may make business sense when trying to beat or meet earnings expectations, but expecting others to continue to invest, innovate and take risks when what they produce is simply copied is naïve to the extreme.

Conservative leaders wrote the White House applauding this initiative, based on the property rights implications of IP expropriation. These conservative leaders note that China is hardly the only country that steals American IP, and such IP theft imposes significant costs to our economy, impairs American competitiveness and compromises our innovative future… The letter reads in part: “The 301 investigation represents a good first step toward asserting rules-based accountability and recommitting to an American IP-based competition policy. However, trade enforcement is only one pillar of an American economic competitiveness plan.”

In the absence of a discernable IP policy, America achieved leadership through laws and courts that supported inventors, and commerce, and that encouraged risk-taking. But the world is now flatter than we could have imagined. If America hopes to remain at the innovation forefront, it needs to rely not only on the ingenuity of its inventors and creators, but on the leadership and vision of government and businesses… Despite the incredible success of several Internet companies — and, some believe, because of it — U.S. IP dominance is in quantifiable decline. Compounding the problem is China, which is now able and willing to fill the void. It has been widely reported that China is a better place than the U.S. and most other nations to obtain patent injunctions and receive a fair hearing in court. Despite this, many U.S. businesses and consumers, impatient with IP rights and cavalier about the impact of IP theft, have come to act with much same attitude the Chinese did before they learned better.

Unfortunately, there’s every indication that today’s event at Brookings will feature more of the same kind of misguided rhetoric on perceived issues with the patent system which don’t truly exist. The evidence for this starts with the moderator for the day’s final roundtable discussion, titled Realigning Incentives to Increase Patent Quality. The moderator for this discussion will be Tim Lee, senior reporter of tech policy for Ars Technica. Lee has written in the past on the effects of “ridiculous patent litigation” and has given space to viewpoints which want to limit patentability in certain sectors, such as in business methods. Lee has also been very critical of appellate court decisions in patent cases in recent years to the point that assertions he’s made on case law regarding the patentability of software inventions border on the ridiculously absurd. This individual, who has a clearly anti-patent viewpoint, will be controlling the discussion during the final panel roundtable on patent policy.

Patent Monetization is a wake. The Patent System failed US tech companies. Licensing is dead. Patent values are zero – perhaps even negative…. The Silicon Valley elites have patent strangled start-ups and hire away their talent. There is no respect for patents at all. Zero. Nada. Ironic in view of the past creation of Silicon Valley where patents were, once upon a time, the driver of value accretion. Not anymore. Data is the new “oil” in them thar hills. If you have and can secure and sell data, you’ve got it made. Gee, sure hope you do not rely on patents to protect any of what you do to collect, secure and sell that data!

On November 10, 2017, the Department of Justice’s (DOJ’s) new top antitrust enforcer, Assistant Attorney General (AAG) Makan Delrahim, delivered a powerful speech on antitrust law and policy enforcement towards intellectual property rights (IPRs). Former USPTO Director David Kappos described it as “the most important DOJ antitrust speech on IP during my decades practicing law”. … The speech clarifies that the new AAG views “any policy proposals with one-sided focus on hold-up with great skepticism because they pose a serious threat on the innovating process,” and submits that antitrust law should not be misused to police the private commitments such as FRAND that IP holders make to SSOs. In this, the speech agrees with the view shared by several scholars that FRAND commitments are contracts and a potential breach of those commitments may not be best suited under the purview of antitrust law and that “there are perfectly adequate and more appropriate common law and statutory remedies available to the SSO or its members”.

The second (lunch) keynote was from a patent fan: Senator Chris Coons (D-DE). By now, I have heard him speak on several occasions and it is always welcome to be reminded that the patent system has an advocate on the Hill. If only more could be recruited to his point of view. He spoke of the constitutional pedigree of our patent system, how well it has worked to achieve it goals over the years, and how the system has been steadily undermined in recent years. He gave a cogent summary of the Supreme Court harpooning of the patent system: eBay: no injunctive relief; Bilski: software tossed aside; Mayo: diagnostics sidelined; Myriad: discoveries eliminated; Alice: finishing off what Bilski started. Combine this with the AIA, and you have a rout. The only solution going forward is for Congress to address these issues. Waiting for the Courts is too too slow, and potentially fatal to the system as users sign-off, and the initiative in technology lost to others who have maintained and improved protection for the same subject matter.

Inasmuch as the new Director can change, or do whatever they want once in the job, and will be subject to political winds, I thought I’d just tell them what I want and why. Simple. Here’s my list. First, believe in your product and the team that produces the product. Stop the labeling of “legitimate patents” as compared to other, presumably, “illegitimate patents”. There is only one type of patent, the one produced by the PTO. End of story. Each receives the examination it can in light of the fees paid. Each examination is done according to the laws and rules set forth in the statute and in accord with the CAFC administration of that statute vis-à-vis the PTO. This is true across all technologies. Examiner’s do the best they can with the tools available. This includes training, searching, and examining. The PTO does not favor one group over another. It calls balls and strikes in light of the relevant statute or rule.

The USPTO’s Obama holdovers Michelle Lee and Tony Scardino are simply co-opting the exact language used in Obama’s budgets for fiscal years 2015 to 2017 into Trump’s 2018 budget and then directly attributing Obama’s policies and statements to President Trump even though Trump has never taken a position on anti-patent legislation… Are these failed Obama era policies now carried over into the Trump Administration by Obama holdovers simply mistakes? Some sort of scrivener’s error? Or is it a direct attempt to carry over failed Obama policies in the name of President Trump? You be the judge. Perhaps you can tell me: Is Trump being googled by Obama holdovers? Or is Trump himself the swamp?

We need to remember that we’ve seen America’s patent system in near complete collapse before. In the 1960s and 1970s the Supreme Court never saw a patent that was valid, which lead to the creation of the United States Court of Appeals for the Federal Circuit. In the 1970s and early 1980s there was great concern that Japan would win the technology future and America would become an also-ran in the burgeoning technological revolution, but that never happened… In the 1980s, a strong patent system was the primary driver for the economic achievements that unleashed American enterprise and allowed the United States to compete on the world stage. It worked in the 1980s to address what was a similarly difficult time, and it will work today.

While Congress seems to pass some form of patent legislation roughly every 9 to 11 years, the more important changes with regard to business predictability and economic growth tend to come from specific Court decisions. Just look at what Alice has done to ruin software patents with uncertainty, and now with the PTAB actually finding that an MRI machine is an unpatentable abstract idea. Worse it has placed the US behind Europe and even China in terms of protecting computer implemented inventions… Courts can make patents great again in America. And if not they will at least be as active as they have been in the past 10 years in terms of shaping the patent dialogue.

While Congress does seem to pass some form of patent legislation roughly every 9 to 11 years, the more important changes with regard to business predictability and economic growth tend to come from specific Court decisions. Just look at what Alice has done to ruin software patents with uncertainty, and now with the PTAB actually finding that an MRI machine is an unpatentable abstract idea. Worse it has placed the US behind Europe and even China in terms of protecting computer implemented inventions.