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Posts in Technology & Innovation

The FTC’s Repair Restriction Ambition May Face Friction

The Federal Trade Commission (FTC) has pledged to use more of its enforcement resources to ensure that consumers are free from manufacturer-imposed restrictions on self-repair or third-party repair, to the maximum extent allowed under the law. The unanswered question is: how far does the law allow the FTC to go? The answer is, quite possibly, not as far as the White House or the new Chair of the FTC, Lina Khan, would like. One problem for the FTC: doubts about the authority granted to the agency under the FTC Act. Another hurdle will be the legal protections granted to manufacturers—both as market participants responding to consumer demand and, in many cases, as the owners of intellectual property rights. This blog has already discussed some of the ways that the “right to repair” movement might conflict with copyright protections. Here, we focus on the limits of the FTC’s authority and antitrust doctrine, as well as conflicts with patent law.

New Tillis-Leahy Bills to Boost Innovation: The Good, the Bad and the Nonsense

Earlier today, U.S. Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT), the Ranking Member and Chair of the Senate Intellectual Property Subcommittee, introduced a pair of bipartisan bills that the Senators say are aimed at improving the participation Americans from all backgrounds in the patent system and ensuring that the public knows the true owners of patents. If enacted, the Unleashing American Innovators Act (UAIA) would require the Director of the United States Patent and Trademark Office (USPTO) to establish another satellite office within three years somewhere in the Southeastern region of the nation, which the bill specifically defines as Virginia, North Carolina, South Carolina, Georgia, Florida, Tennessee, Alabama, Mississippi, Louisiana, and Arkansas. Of course, given that the main campus of the USPTO is located in Alexandria, Virginia, it would seem unlikely that Virginia would be the final destination of any Southeast Region satellite office. The UAIA would also require the Director to determine within two years whether any additional regional satellite offices are necessary to— in the words of the bill— “achieve the purposes described in section 24 23(b) of the Leahy-Smith America Invents Act… and increase participation in the patent system by women, people of color, veterans, individual inventors, or members of any other demographic, geographic, or economic group that the Director may determine to be underrepresented in patent filings.”

IPWatchdog LIVE ‘Jurassic Patents’ Panel Explores Patenting Challenges for Life Sciences Innovation

On the final day of IPWatchdog LIVE last week, a panel titled “Jurassic Patents: Genetic Engineering and the Future of Life Science Innovation,” moderated by president and CEO of the PCT learning center and founding partner of Berenato & White, John White, examined the challenges of patenting discoveries in the life sciences in light of recent legal developments. The panel included patent litigator and partner at Akin Gump, Dr. Rachel Elsby, patent prosecutor and shareholder with Volpe Koenig, Dr. Douglas Bucklin, and food and drug lawyer and counsel at McGuire Woods, Kae Gruner.

A Kinder, Gentler ‘Death Squad’: Ten Years in, Despite Some Reforms, the USPTO is Still Killing U.S. Patents

Now that the 10th anniversary of the America Invents Act (AIA) has passed, we can look back not only at the past decade, but also the reactions of various interested parties and how they responded to that anniversary. There were two revolutionary amendments to U.S. patent laws enacted on September 16, 2011; one relating to the U.S. changing from first-to-invent to first-to-file, the other relating to the creation of the Patent Trial and Appeal Board (PTAB) and three new procedural mechanisms to invalidate issued patents. While from a philosophical and practical point of view, the change from first-to-invent to first-to-file had the largest impact on patent practice, it has essentially become a footnote in patent history. Yes, the United States had a bizarre system that allowed the second filer in some instances (i.e., the first to invent) to obtain a patent over the first-to-file, but that almost never happened. And now, the United States has a strange, hybrid first-to-file system that still theoretically allows the first-to-invent to prevail in even rarer circumstances, but that change became easily baked into the system, because overwhelmingly, the first-to-invent did file first. The real story of the change to first-to-file is that much more is now prior art, including foreign filed applications as of their foreign filing date, typically, which continues the theme of the last 15+ years of making it harder to obtain and keep patent rights in the United States.

U.S. Embassy Failures, COVID-19 Travel Restrictions, Keep Attorney Working on COVID-19 Technology Out of United States

Surely there can be no greater national interest to the United States than to allow each and every single person working to solve the COVID-19 pandemic to cross our border without issue, especially those who have already earned visas to work in the United States. However, a series of unfortunate events and policies has resulted in an ironic situation in which, in one example, an attorney from Sweden, who has spent significant periods of time within the United States since 2006, cannot return to the states to sit for the patent bar; aid members and clients of her law firm who are needful of her unique skills, including one colleague who is undergoing medical treatment for a serious health condition; or prosecute several patent applications representing some vital advancements in the fight against COVID-19. U.S. Embassy inaction, which is blocking her ability to take the U.S. patent bar, join her colleagues in the U.S. who have mentored her in this field for a year-and-a-half, and work on these COVID-19 patent solutions, arguably threatens the very chance of those inventions and technologies being properly commercialized to benefit everyone in the United States and beyond.

IPWatchdog LIVE Panel Asks if Federal Circuit is Killing Software Patents and Answers Definitively, ‘Yes’

On Day 2 of IPWatchdog LIVE, a lively morning panel was convened on the subject of “Is the Federal Circuit Killing Software Patents?” Though that question was answered in the first few seconds of the panel session, the following hour of discussion yielded various ideas on how disastrous jurisprudence on Section 101 subject matter eligibility could be addressed at the Federal Circuit. Speaking on this panel was Robert Stoll, Co-Chair of the IP Group at Faegre Drinker and Former Commissioner of Patents, USPTO; Russ Slifer, Principal at Schwegman Lundberg & Woessner and Former Deputy Director, USPTO; Raymond Millien, CEO at Harness Dickey; and Benjamin Cappel, Partner at AddyHart P.C.

IPWatchdog LIVE Event Wraps Up with Featured Speakers Makan Delrahim and Vishal Amin

On day three of IPWatchdog LIVE in Dallas, Texas, former Assistant Attorney General in charge of the Antitrust Division at the U.S. Department of Justice (DOJ), Makan Delrahim, who is now a Member of the Board of the Directors at Osiris Acquisition Corporation and a Lecturer in Law at the University of Pennsylvania, told attendees of the event that it’s unfortunate that antitrust [and its interaction with intellectual property rights] has become a partisan issue when “it doesn’t need to be.” Delrahim recalled during a Luncheon Fireside Chat with IPWatchdog Founder and CEO Gene Quinn that, 20 years ago, when he was detailed to the Office of the U.S. Trade Representative (USTR), “the approach to strong IP was a unifying issue, and something that was not questioned, nor its value.” He added that he has become a bit discouraged by the “echo chamber” that has been created about IP to “devalue its actual impact on economics and on society”—particularly when our trading partners, like China, have realigned to recognize the value.

Complex IP Challenges in Autonomous Vehicles

On August 16, the National Highway Traffic Safety Administration (NHTSA) announced that it had opened a probe into Tesla’s driver-assistance technologies after it identified 11 crashes since 2018 in which a Tesla vehicle had struck an emergency-response vehicle. All Tesla vehicles involved had been using the automaker’s Autopilot feature at the time of the crashes, which enables the vehicles to steer, accelerate, and brake automatically. The crashes have attracted the scrutiny of lawmakers and regulators of Autopilot and similar technologies. With increased attention being paid to AV safety, AV companies are shifting their research and development and IP strategies toward technologies designed to address consumers’ real-world safety concerns.

Iancu, Kilbride, Israel Separate Fact from Fiction During IPWatchdog LIVE Panel on TRIPS IP Waiver

On Monday of IPWatchdog LIVE in Dallas, a panel on “The TRIPS IP Waiver: Separating Fact & Fiction” was moderated by president and CEO of the PCT learning center and founding partner of Berenato & White, John White, and featured IP leaders Andrei Iancu, Patrick Kilbride, and Chris Israel. The Trade Related Aspects of Intellectual Property (TRIPS) agreement is an international agreement among members of the World Trade Organization (WTO), which sets minimum standards in the international rules governing intellectual property. In 2020, India and South Africa proposed a TRIPS Agreement waiver proposal that would temporarily waive intellectual property rights protections for technologies needed to prevent, contain, or treat COVID-19, including vaccines and vaccine-related products. The proposal has been hotly contested globally, but the Biden Administration said in May of this year that the United States would back it.

Qualcomm’s Mark Snyder Headlines IPWatchdog LIVE Day 2: ‘The U.S. Needs a New Innovation Policy’

Mark Snyder, who has served as Senior Vice President and Deputy General Counsel for Litigation at Qualcomm since 2016, during his Luncheon Keynote on Day 2 of IPWatchdog LIVE 2021 suggested that the United States needs a new innovation policy. The current innovation policy consists of the following 18 words on the U.S. State Department website: “The State Department is committed to removing barriers overseas, protecting intellectual property, and maintaining U.S. technological edge.” Snyder said he was “blown away that we did not have something more meaningful than that.” Further, only three of those words – “protecting intellectual property” – are actually concrete policy, and the United States is arguably flouting them, Snyder said.

A New Patent Frontier: the Coming of Age of siRNA Therapeutics

Small interfering RNA (siRNA) therapeutics have shown tremendous promise in targeting diseases with poor prognoses, transforming the pharmaceutical landscape. They have allowed a paradigm shift from a conventional inhibitor-based approach to RNA-induced targeted gene silencing. Rational siRNA design and delivery methods have significantly improved their stability, limited immune activation, and increased target affinity resulting in an influx of siRNA-based clinical trials. The U.S. Food and Drug Administration (FDA) has since approved three therapeutic siRNA drugs, ONPATTRO® (patisiran), GIVLAARI® (givosiran), and OXLUMO® (lumasiran) developed and marketed by Alnylam® Pharmaceuticals. In addition, several other drugs are in the late stages of clinical trials.

Commerce Department Announces National Artificial Intelligence Advisory Committee

The U.S. Department of Commerce announced on Wednesday that it has established a National Artificial Intelligence (AI) Advisory Committee that will advise the President and other federal agencies on issues surrounding AI. The Committee will work with the existing National AI Initiative Office (NAIIO) in the White House Office of Science and Technology Policy (OSTP).

The Market For IP-Based Financial Offerings Is Finally Maturing

Intangibles, and particularly intellectual property, are curious assets. By some estimates, intangibles comprise a large overall percentage of the S&P 500’s total value. Yet – as most IP-rich companies know – leveraging the value of intellectual property to secure a financing has traditionally been very hard to do. Yes, the litigation finance industry offers capital to intellectual property owners who need to finance the tremendous expense of intellectual property enforcement litigation. And yes, some litigation finance deals provide for operating expenses. But many IP-rich companies have financing needs that do not center around litigation or jive with the litigation finance industry’s cost of capital.

U.S. District Court Holds that AI Algorithms Cannot Be Listed as Inventors on Patents

On September 2, the U.S. District Court for the Eastern District of Virginia issued a decision granting a Motion for Summary Judgment for the United States Patent and Trademark Office (USPTO) and upholding the Office’s view that AI algorithms cannot be listed as inventors on U.S. patents. The court pointed to the Administrative Procedures Act’s (APA’s) strong deference to final agency decisions, barring any egregious errors. DABUS generated outputs corresponding to (1) a fractal design for food container surfaces that may help prevent stacked containers from sticking together and (2) a technique for controlling the timing of flashing warning lights to help attract attention. Dr. Stephen Thaler (DABUS’s creator and owner) filed patent applications on these inventions that were filed around the world, listing Thaler as the applicant and listing only DABUS as the inventor.

Patent Damages Laws Regarding Apportionment are Inapplicable to Breach of Contract (FRAND) Claims

In a previous article, we discussed the difference between a reasonable royalty for patent infringement and a FRAND licensing rate, both in terms of their origins and objectives: the former being a creature of statute and case law that seeks to compensate a patent owner for infringement, whereas the latter is rooted in contract and seeks, amongst other things, to address issues of royalty stacking and discriminatory licensing. Despite these differences, we noted that these two concepts have often been treated interchangeably by courts, often leading to confusing results…. Pursuant to appeal of that decision, however, the United States Court of Appeals for the Fifth Circuit has now addressed the photonegative question in HTC Corp. et al. v. Telefonaktiebolaget LM et al., case number 19-40643: are patent laws regarding what constitutes a reasonable royalty applicable to questions of compliance with FRAND-related contractual obligations? Though the majority decision did a great job highlighting the distinction between these two different concepts, there was a concurring decision that continues to blur the line.