Posts in Technology & Innovation

Let’s Get on the Same Page: A Framework for Aligning Private and Government Goals on IP

Both the Biden and Trump Administrations have made it abundantly clear that economic and technology security is now national security. In the latest National Security Strategy, the Biden Administration stated, “Technology is central to today’s geopolitical competition and to the future of our national security, economy, and democracy. U.S. and allied leadership in technology and innovation has long underpinned our economic prosperity and military strength. In the next decade, critical and emerging technologies are poised to retool economies, transform militaries, and reshape the world.”

Coalition of Academics Sends Letter Opposing Biden Administration’s March-In Rights Proposal

Today, a letter signed by a coalition of top academics opposing the Biden Administration’s efforts to exercise march-in rights under the Bayh-Dole Act of 1980 was sent to the White House. Signed by academics in fields including law, economic policy and sciences, the letter warns the Biden Administration that its efforts to drive down drug pricing by seizing patent rights will “undermine fundamental principles that have made the American IP system the golden standard for supporting domestic innovation.” A growing topic during recent Congressional debates, march-in rights under Bayh-Dole took on a new focus in early December when the National Institutes of Standards and Technology (NIST) and the U.S. Department of Commerce released a draft framework of factors that federal agencies should consider for the exercise of authority codified at 35 U.S.C. § 203 that would compel patent owners holding rights to federally-funded inventions to license those rights to “responsible applicants.”

AI Research Pilot Launched by NSF with USPTO as Partner

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.

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).

Is AI’s Copyright World Flat, or Will AI Flatten the Copyright World?

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.

The UK Supreme Court DABUS Decision: The End or Just a Bump in the Road for AI Inventors?

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.