Blow to AI, Clarity for Humans: Key Insights from the DABUS Rulings

The August 2019 announcement that two patent applications had been filed naming an artificial intelligence (AI) algorithm as an inventor in the United States and a dozen other countries was regarded as disruptive and profound at the time. It was one of the hot topics in patent law during those last few months before the pandemic. But since then, given all the other crazy and disorienting stuff that has happened in the world, we have become desensitized to the question, even if it is just as radical and important today. To be sure, the U.S. Court of Appeals for the Federal Circuit’s August 5 ruling that an “inventor” must, under the Patent Act, always be a human being, would seem to definitively resolve the question. As a matter of existing and clearly settled law, Stephen Thaler’s AI machine, DABUS, cannot be a named inventor on his applications for a fractal-shaped beverage container and a neural flame, like we always thought in the Before Times. It’s time to relegate this parlor-game discussion to the same recycle bin as Beeple’s non-fungible token (NFT), The Tiger King, and so many other viral distractions. Or, perhaps, not so fast.

A Plea to Senator Tillis: Words Matter in Section 101 Reform

In U.S. government, setting public policy is the sole and exclusive domain of Congress. The laws they pass effectuate the public policy positions that Congress alone has the power to set. In law, words are everything. The precise meaning of the words in law determines whether the public policy is implemented as intended by Congress. Altering the meaning of just one word can change the entire public policy set by Congress, even turning the public policy on its head. Anyone following the debate on patent eligibility can attest to how the Supreme Court’s redefinition of the word “any” in 35 U.S.C. § 101 to have an exception called an “abstract idea” caused a significant public policy change and that change destroyed countless startups, especially those in tech. Senator Tillis’ Patent Eligibility Restoration Act of 2022, S.4734, wrongly puts the courts in charge of defining public policy because it leaves key words completely undefined.

Entrepreneur Spotlight: How Ray Young is Fighting Content Theft Encouraged by Big Tech Platforms

Ray Young started RightsLedger.com to give creators control of their content and opportunities for IP monetization, using blockchain technology to authenticate ownership. His latest venture, Milio.io, is the first social media platform to fairly share advertising revenue with users, and already has over a million users. Young spent over two years, since Dec 2019, in Manila working on the company’s launch and is focused on rewarding small and independent content creators with the ability to both protect and monetize their IP. I spoke with Young to better understand how he is helping creators to safeguard and profit from their content online.

Dissent Today, Majority Tomorrow—A Federal Circuit Approach to Rehearing

Talk about snatching victory from the jaws of defeat! That is precisely what the Federal Circuit did for HEC Pharm Co. recently in Novartis Pharmaceuticals Corp. v. Accord Healthcare Inc. et al (No. 2021-1070). In what can only be characterized as an astonishingly unprecedented procedural betrayal of justice, Novartis recently found itself on the losing side of a request for panel rehearing. Save for a moment just how extraordinarily uncommon it is for the Federal Circuit to grant panel rehearing, and likewise save for a moment how extremely uncommon it is for the Federal Circuit to overrule a prior panel decision even when a panel rehearing is granted. But in Novartis Pharmaceuticals v. Accord Healthcare, neither of the panel members in the majority of the original opinion even agreed to rehear the case, let alone agreed to reverse their prior ruling.

Studebaker & Brackett is Hiring a Patent Attorney or Agent

Studebaker Brackett PC, a growing patent firm located in Tysons, VA, and a short walk from the Greensboro Metro Station/Silver Line, seeks a qualified, experienced Patent Attorney or Agent for primarily handling patent preparation and prosecution.

Unleashing the Power of AI to Fight Bad Faith Trademark Registrations

Summer has been historically associated with celebrating the enactment of the Trademark Act of 1946 (the “Lanham Act”). Accordingly, Congress now annually introduces resolutions celebrating July, along with Independence, as “anti-counterfeiting awareness month.” These non-binding resolutions are an important reminder of the national importance of trademarks—and a reminder that counterfeiting, and related bad faith trademark misconduct, negatively impacts U.S. small businesses, American jobs, the U.S. economy, and erodes our international competitiveness. Increasingly, brand owners are fighting numerous trademark issues around bad faith registrations and more artful counterfeiting every day of every month. Fortunately, one important element of the solution for restoring the integrity of the register are the tools made possible by responsible artificial intelligence and machine learning (AI/ML) image recognition technology that can fight the fakes.

Other Barks & Bites for Friday, August 5: Win for AbbVie at Seventh Circuit; Eleventh Circuit Affirms Ruling for Monster Energy; and Ninth Circuit Reverses Fair Use Finding in Death Valley Lake Photo Case

This week in Other Barks & Bites: Senators Thom Tillis and Patrick Leahy introduce a bill to improve patent examination and quality, while Tillis’ office also releases a draft bill on Section 101 patent eligibility; the Ninth Circuit reverses a district court’s summary judgment ruling that the unauthorized use of photos of a lake in Death Valley was a fair use; Amazon will acquire robotics firm iRobot for $1.7 billion; the Seventh Circuit nixes antitrust claims against AbbVie after finding nothing improper with the company’s large number of patents covering Humira; the Eleventh Circuit affirms a lower court’s decision to strike an actual damages claim in a trademark case against Monster Energy as a discovery sanction; the bipartisan PLAN for Broadband Act is introduced to develop a cohesive national strategy for broadband infrastructure; and the USITC begins a formal enforcement proceeding against The Chamberlain Group after finding violations of Section 337 for patent infringement.

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