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Referencing Science Fiction: An Ode to (Slightly) Livening Up Patents

I want to salute the patents that, every so often, reference science fiction. Please stop reading if you’re looking for deep, doctrinal substance. Stick around, however, if you have a few minutes to loosen up. These enhancements make patents more fun. Not so long ago, U.S. Supreme Court Justice Elena Kagan drew headlines in Vanity Fair and People by weaving Spider-Man references into her opinion in Kimble v. Marvel Entertainment. Surely, we’re not more uptight than the Supreme Court, right? Beyond lightheartedness though, these enhancements might make patents more meaningful. Camilla Hrdy and Daniel Brean recently commented in the Michigan Technology Law Review that “many inventions that were originally introduced in science fiction also end up in the patent record.” Although some of their commentary might overlap with my point here, I want to instead focus on science fiction as a fun and useful tool.

Controversial Nomination of Sohn to FCC Reported to Senate Floor in a Tie Vote

The Senate Committee on Commerce, Science and Transportation today voted 14-14 to advance the nomination of Gigi Sohn to serve as a commissioner with the Federal Communications Commission. Committee Ranking Member Senator Roger Wicker (R-MS) opposed the nomination, explaining that “the committee’s vetting process has clarified she’s not the right choice to fill this vacancy” due to several conflicts of interest. Groups including the U.S. Chamber of Commerce also vocally opposed Sohn’s nomination this week. In December, Senator Thom Tillis (R-NC) wrote a letter to President Biden asking Biden to withdraw Sohn’s nomination, explaining that her role as a co-founder of the open Internet advocacy group Public Knowledge poses a threat to copyright owners in particular. “[Sohn] is a radical open-content activist with no respect for intellectual property rights,” Tillis wrote.

Federal Circuit Upholds $6 Million ITC Civil Penalty After Subsequent Invalidation of Claims

On March 1, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed the U.S. International Trade Commission (ITC)’s determination that the civil penalty imposed on DBN Holding, Inc. and BDN LLC did not require modification or rescission following the subsequent invalidation of the asserted claims. The ITC imposed this civil penalty against DBN for violating a consent order that prohibited unfair trade acts of infringement involving the now invalidated claims.

Patent Filings Roundup: Joao Sub Hauls Shipping Industry into Albright’s Court; IP Investments Sub Targets Realty Companies with IV Patents

With 69 new district court patent filings and 24 Patent Trial and Appeal Board (PTAB) challenges (all inter partes reviews), it was a now-routine end-of-the-month filing spree for IP Edge subsidiaries, with 23 new complaints by such entities. The PTAB dockets continue to be dominated by cases against litigation-funded entities like Magentar Capital’s Scramoge, Fortress IP’s VLSI and Jawbone, and WSOU, plus the seemingly now-regular trickle of cases between Apple and Ericsson. Big-ticket assertor Agis Software disclaimed challenged claims in an IPR brought by Google and Samsung, thus cancelling the claims; and some ANDA-related litigation kicked off before various district courts.

Fifth Circuit Says Auto Parts Suppliers Have No Article III Standing to Bring Antitrust Claims Against SEP Holders

The U.S. Court of Appeals for the Fifth Circuit on Monday vacated and remanded a district court decision that had dismissed Continental Automotive Systems, Inc.’s suit against several standard-essential patent holders and their licensing agent, claiming violations of federal antitrust law and state law. The U.S. District Court for the Northern District of Texas dismissed with prejudice Continental’s Sherman Act claims for lack of antitrust standing and, alternatively, for failure to plausibly plead certain elements. Continental appealed, but the Fifth Circuit said Continental’s claims should have been dismissed for lack of Article III standing because it had not proven that the SEP holders had “denied Continental property to which it was entitled and that Continental thereby suffered a cognizable injury in fact.”

Two Years After Allen, SCOTUS Poised to Revisit Copyright Infringement by State Entities

On February 21, Houston, Texas-based professional photographer Jim Olive filed a reply brief with the U.S. Supreme Court in defense of its petition for writ of certiorari asking the nation’s highest court to grant an appeal in Olive’s copyright infringement suit against the University of Houston System. This case is one of two separate suits seeking to hold Texas public universities accountable for copyright infringement; while sovereign immunity defenses have staved off liability thus far, a recent Takings Clause decision by the Supreme Court has created a path forward for these and other IP owners looking to hold state entities accountable for their IP infringements.

CAFC Reversal Allows APA Claim Against USPTO to Proceed

Last week, the United States Court of Appeals for the Federal Circuit (CAFC) reversed a decision of the U.S.  District Court for the Eastern District of Virginia affirming the United States Patent and Trademark Office (USPTO) Director’s vacatur of ex parte reexamination proceedings based on the estoppel provision of the inter partes review (IPR) regime. In 2015, Vivint, Inc. sued for infringement of three patents, U.S. Patent Nos. 6,147,601 (the ‘601 patent), 6,462,654 (the ‘654 patent), and 6,535,123 (the ‘123 patent). In response, filed several petitions for IPR, which culminated in three final written decisions in 2017. On review, the CAFC affirmed the decision of the Patent Trial and Appeal Board (PTAB) that had failed to satisfy its burden of proving unpatentable claim 19 of the ‘601 patent, claim 18 of the ‘123 patent and claims 17,18, 22, 25, and 28 of the ‘654 patent.

The Cost of Honest Mistakes: Even After Unicolors, Copyright Application Errors May Still Have Consequences

On February 24, 2022, the U.S. Supreme Court vacated the Ninth Circuit’s ruling in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 20–915 (Feb. 24, 2022). The Court held that a copyright registration applicant, if unaware of legal inaccuracies in a copyright application, does not submit those inaccuracies “knowingly” for purposes of Section 411(b)(2), and as such, does not lose the protections of the Copyright Act’s safe harbor for registrations with inaccuracies. Undoubtedly, the decision is a win for authors that, during the copyright application process, unwittingly submit inaccurate information to the U.S. Copyright Office (e.g., because they did not understand the law, and/or were not assisted by competent copyright counsel). That said, the decision does not do away with the risks associated with honest mistakes in U.S. Copyright Office filings, and authors should take care to mitigate such risks.

Clause 8: Professor Ryan Abbott on Why Patent Law Should Recognize AI Inventors

If listing artificial intelligence (AI) machines as inventors on patents sounds like science-fiction to you, Professor Ryan Abbott is ready to make the case that it’s a very real issue. Abbott became interested in patents after becoming a medical doctor and obtaining a law degree from Yale Law School. He then noticed that scientists were starting to use AI to identify problems and solutions — and wondered about the legal ramifications from a patent perspective. Shouldn’t the AI be identified as an inventor, the same way a human would be? Abbott clearly believed that was the case. However, there was no precedent for any patent system allowing for an AI machine to be listed as an inventor. In fact, he discovered that companies had to forego obtaining patent protection because they were unable to do that. 

When it Comes to Eukaryotic Cells, Broad Institute Has Priority to CRISPR Gene Editing Tech, Says PTAB

The U.S. Patent and Trademark Office (USPTO) ruled in an interference proceeding yesterday that The Broad Institute, Inc., Massachusetts Institute of Technology, and President and Fellows of Harvard College (“Broad”) have priority over The Regents of the University of California, University of Vienna, and Emmanuelle Charpentier (“CVC”) with respect to who was first to invent the use of single-guide CRISPR-Cas9 genome engineering technology in eukaryotic cells.

This Week in Washington IP: Confirmation Vote for Gigi Sohn to FCC, Legislating Greater Data Privacy Regulations Against Big Tech

This week in Washington IP news, the House Consumer Protection Subcommittee hosts a hearing to debate several bills aimed at regulating the consumer data privacy practices of Big Tech, while the House Space Subcommittee reviews the current status of NASA’s Artemis program. Over in the Senate, the Judiciary Committee discusses several judicial nominees to sit on the bench of a pair of U.S. district courts very important to the world of intellectual property, while the Senate Commerce Committee will hold a long-awaited vote on the nomination of Gigi Sohn to serve as an FCC Commissioner. Elsewhere, New America brings an expert panel together to debate NIST’s recent IoT cybersecurity labeling guidelines and how those can be translated into physical labels to inform consumers about IoT device security 

Ninth Circuit Says Copyright Suit Against AppleTV+ Shyamalan Series Can Proceed

On February 22, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded the U.S. District Court for the Central District of California’s dismissal of a copyright suit filed against Apple Inc. and other defendants explaining that dismissal was improper at the pleading stage because reasonable minds could differ on the issue of substantial similarity. The suit was brought by Francesca Gregorini—writer, director, and producer of the film The Truth About Emanuel. She claimed that the first three episodes of Defendants’ AppleTV+ series, Servant, infringed her copyright. In May 2020, U.S. District Judge Walters dismissed Gregorini’s complaint on the ground that the works were not substantially similar as a matter of law. Gregorini appealed to the Ninth Circuit.

Exploring the 2022 EPO Guidelines for Examination

The European Patent Office (EPO) recently published its Guidelines for Examination 2022, which come into force on March 1. Compared to previous years, the volume of changes is much smaller, and this witnesses the effort by the EPO in past years to arrive at a more stable text of the Guidelines, particularly concerning the software patentability and biotech sections. Yet some changes have been made, mainly to software patentability guidelines, as well as to other important sections, such as partial priorities and amendments to the description. Continuing the trend of past years, the Guidelines continue to be enriched with helpful examples.

CAFC Clarifies Ruling on IPR Estoppel in Errata on Caltech v. Broadcom

Earlier this month, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the U.S. District Court for the Central District of California in a patent infringement suit filed by the California Institute of Technology (Caltech) against Broadcom Limited, Broadcom Corporation, and Avago Technologies (collectively “Broadcom) and Apple Inc. As part of that decision, the CAFC affirmed the district court’s decision barring raising invalidity challenges based on known prior art after an IPR litigation. The court took the opportunity to overrule Shaw Industries Group, Inc. v. Automated Creel Systems, Inc. (Fed. Cir. 2016) and clarify that estoppel applies to claims and grounds not in the IPR but which reasonably could have been included in the petition. On February 22, however, the CAFC published an errata to that opinion. While it did not include its reasoning for the clarification to the February 4 precedential opinion, the original opinion referenced the statute on estoppel, 35 U.S.C. § 315(e)(2), which addresses estoppel as a result of an IPR on a per claim basis rather than a per patent basis.

Big Tech and China, Inc. Rejoice in DOJ Draft SEP Policy Statement and FTC Speech

Last summer, I lamented how the Department of Justice – Antitrust Division (DOJ), without Senate confirmed leadership, was hastily pushing through policies that augmented the already-enormous power of Big Tech and benefitted China’s interests. Similarly, I uncovered how the App Association, a Big Tech-funded advocacy organization masquerading as a group of small app developers, was able to trick the Federal Trade Commission (FTC) into inviting it to speak at its July 2021 Commission meeting alongside legitimate small businesses. This is the same association that supported Apple in its litigation against (real) app developers, issued a June 2021 press release against the House bills aimed at regulating Big Tech, and misses no opportunity to support Big Tech interests.

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