Posts in Technology & Innovation

The U.S. Supreme Court’s Alice decision alleges that “…merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.” And the Patent Eligibility Restoration Act (PERA) of 2023 alleges that “adding a non-essential reference to a computer by merely stating, ‘do it on a computer’ shall not establish such eligibility.” Clearly, it is assumed that “merely” doing something on a computer or “merely” saying “do it on a computer” is not a desirable thing in the eyes of some; a computer supposedly invalidates the inventive effort and “merely” doing something on a computer is undeserving of even consideration of a patent.

In September 2023, one man grabbed the authors’ attention with his astonishing story about defending his trademark registration from an opposition by professional trademark attorneys using ChatGPT. His months-long battle began in December 2022, less than a month after the public launch of the now infamous AI chatbot. Nine months later, Jamiel Sheikh — an entrepreneur, tech-guru, and adjunct professor — survived the pressure from formal proceedings and obtained a settlement from his opposer without spending a dime. As young trademark attorneys, we were horrified yet extremely curious about what he had done. This article is the result of speaking with Sheikh about his experience and the evolving needs and expectations of sophisticated legal service consumers.

An event held Monday by the Center for Strategic & International Studies (CSIS), and moderated by former U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu, featured a number of high-profile political and professional figures in the intellectual property space debating approaches to strengthening the U.S. patent system, with an emphasis on national security. Representative Deborah Ross (D-NC), who serves on the U.S. House of Representatives’ Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, first joined Iancu to discuss her reasons for supporting the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act.

Recently, Wen Xie argued on IPWatchdog that the U.S. Copyright Office (USCO) and the U.S. Patent and Trademark Office (USPTO) have reached different conclusions regarding “the creative and conceiving capabilities of machines,” which leads to intellectual property (IP) law being self-contradictory. According to Xie, the USCO presumes that artificial intelligence (AI) is creative, while the USPTO does not reach a similar conclusion regarding AI inventorship. I disagree.

The U.S. Patent and Trademark Office (USPTO) announced today that it is launching a pilot program to help promote semiconductor innovation by expediting examination for qualifying patents. The program is meant to support the objectives of President Biden’s Creating Helpful Incentives to Produce Semiconductors (CHIPS) and Science Act, which was signed into law in August 2022. The CHIPS and Science Act provided $280 billion in federal funding to encourage the domestic production of semiconductor products in the United States as well as to fund research and development projects in advanced technological fields like quantum computing and artificial intelligence. The law also provides for a $10 billion investment into the development of regional innovation and technology hubs and establishes other programs supporting science, technology, engineering and math (STEM) educational programs.

On November 16, innovation intelligence firm Patsnap published the results of its 2023 Global Innovation Report, which measures a range of patent metrics to determine the most innovative companies in the world. This year’s Global Innovation 100 listing represents about a quarter of the globe’s entire patent filing activity. The report also includes a Global Disruption 50 listing of actively growing and young companies, reflecting the strength of both the United States and China in emerging technology fields.

Following a panel that examined the international landscape for standard essential patents (SEPs), IPWatchdog’s Founder and CEO, Gene Quinn, and Chief Operating Officer, Renee Quinn, presented The Honorable Randall Rader with the IPWatchdog Masters™ Hall of Fame award and a sketched portrait to add to the Wall of Fame at IPWatchdog’s headquarters. Judge Rader served as a circuit judge on the U.S. Court of Appeals for the Federal Circuit from 1990 through 2010, and as the court’s Chief Judge from 2010-2014. He has won numerous awards and now works an arbitrator, mediator and consultant with the Rader Group. In his explanation of the origins of the IPWatchdog Masters™ Hall of Fame in 2022, Quinn said he wanted an IP Hall of Fame that included only “real IP professionals; people who mean something to me, people I want you to hear from.”

The United States Patent and Trademark Office (USPTO) issued its one millionth design patent on September 26, 2023. U.S. Patent No. D1,000,000 claims the ornamental design for a dispensing comb. This milestone comes during a particularly prolific period for design patents. In 2022 alone, the USPTO received more than 50,000 design patent applications. The Office has seen a 20% growth in design patent applications over the last five years. It is not hard to understand why inventors are seeking design patent protection at previously unseen levels. In an age of complicated technologies, design patents can protect marketable appearances of products in the same manner generally as trademarks identify source. Understanding design patent benefits underlying the recent growth in application numbers is a good lesson for businesses seeking to distinguish a brand—but keep an eye out for further developments and be prepared to adjust business and IP strategies.

In today’s high-tech landscape, the ancient fable of the goose that laid the golden eggs imparts profound wisdom. The farmer in that tale weighed the decision to continue accumulating wealth slowly by selling the golden eggs that his magical goose laid (one per day) or taking a risk by killing the goose to harvest all of the gold within it at once. (Ultimately, the farmer chose the murderous path only to discover the goose did not contain any riches.) Just as the farmer faced thorny decisions in the tale, modern tech executives grapple with complex choices between immediate returns and long-term potential while also maintaining a competitive edge. In the real world, an artificial intelligence (AI) system that can generate patentable outputs (such as designs for new drugs) stands as the metaphorical “goose” while the inventions it produces are analogous to the “golden eggs.” Steadfastly guiding this delicate dance is the patent attorney with expertise in AI technology.

On October 16, a jury verdict  entered in the District of Delaware awarded $9 million to 3G Licensing, a subsidiary of European patent pool operator Sisvel, after finding that Taiwanese consumer electronics company HTC Corp. willfully infringed upon a pair of cellular telecommunications patents. The verdict follows summary judgment rulings in the case against HTC and other defendants, who argued that the asserted patents were encumbered by fair, reasonable and non-discriminatory (FRAND) licensing obligations without establishing the patents’ essentiality to any standard.

On October 30, President Joe Biden issued an executive order (EO) announcing a series of new agency directives for managing risks related to the use of artificial intelligence (AI) technologies. The EO prioritizes risks related to critical infrastructure, cybersecurity and consumer privacy but it does not establish clear directives on copyright issues related to generative AI platforms that have garnered much debate in Congress in recent months.

The world is increasingly connected, and semiconductors are essential to enabling this connectivity. Specialists project the semiconductor market to become a trillion-dollar industry by 2030 (McKinsey & Co., 2022). The term “semiconductors” covers a large amount of embedded technology that is advancing rapidly in its development. Semiconductor companies are highly innovative and rely on innovation to maintain their market share and expansion objectives. An indicator of innovation in this sector is, of course, patents. Of the 10 largest semiconductor companies, according to a ranking published by Investopedia in April 2023, five companies filed between 2,000 to 5,000 patent families between 2019 and 2022

On Thursday, October 26, the U.S. International Trade Commission (ITC) issued a limited exclusion order (LEO) and cease and desist order against Apple, potentially barring the technology company from importing Apple Watches into the United States. The ITC found Apple violated section 337 by importing Apple Watches that infringed on two Masimo patents that covered technology related to reading blood-oxygen levels.

Startups often face many competing pressures. Two such pressures that are frequently at odds with each other are the need to adequately protect the intellectual property that will be the basis for future revenue and investment, and the need to bring such revenue and investment into the business to allow for continued technology development and commercialization. Many startups are aware of how the on-sale bar interacts with these pressures and the associated need to file patent applications on any technology prior to offering or placing it on sale. However, fewer startups are aware of the public-use bar and how activities pursued with the goal of growing their businesses may unwittingly invoke it.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today issued a precedential ruling finding that it is ultimately the petitioner’s burden to clearly present arguments in an inter partes review (IPR), and that Netflix failed to do so in challenging the relevant claims of DivX’s streaming technology patents. Judge Dyk dissented from the majority.