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Iancu and Kappos: TRIPS IP Waiver Proposal Will Kill More People Than It Saves

A webinar hosted on Tuesday, January 12, by The Federalist Society’s Regulatory Transparency Project featured former U.S. Patent and Trademark Office (USPTO) Directors Andrei Iancu and David Kappos, as well as Duke University Professor of Law and former USPTO Administrator of the Office of External Affairs Arti Rai, discussing the proposal to the World Trade Organization (WTO) to waive IP rights under the Trade-Related aspects of Intellectual Property Rights (TRIPS) Agreement for certain COVID-19 technologies. While all three panelists agreed that the IP waiver discussion has become a distraction that will not solve the fundamental problems, Iancu and Kappos were especially passionate that the precedent set by the U.S. government’s decision to back the proposal could do very real harm, rather than good.

One is the Loneliest Number: Analyzing the 2021 Draft Policy Statement on SEPs Subject to Voluntary F/RAND Commitments (Part II)

In Part I of this series of articles, we provided an overview of the 2013 and 2019 policy statements that preceded the 2021 Draft Policy Statement. In this Part II, we consider the language of a specific licensing commitment made to European Telecommunications Standards Institute (ETSI), and various legal pronouncements that have been made in relation thereto.

IFI CLAIMS Rankings Show Increasing Role of Chinese Entities in U.S., Global Patent Ownership

Today, patent data analytics firm IFI CLAIMS released its annual report of the top U.S. patent recipients and active patent family owners, providing the IP world with a look at the patent ownership landscape that developed throughout the course of 2021. For yet another year, information technology R&D giant International Business Machines (IBM) earned the top spot among entities obtaining patents from the U.S. Patent and Trademark Office (USPTO), while South Korean tech conglomerate Samsung Electronics enjoys the largest portfolio of global active patent families.

Patent Licensing is a Risky Business: Let the Market Strike the Balance

Patent licensing and technology transfer are cornerstones of modern economies, where the efficiencies of collaboration and division of labor do not require firms to be vertically integrated. The Wright brothers did not build commercial aviation, and yet commercial aviation was born thanks to the Wright brothers’ invention. Similarly, a car manufacturer can simply rely on communication technologies developed by telecom experts outside the automotive ecosystem to guarantee connectivity to its fleet and the corresponding massive economic benefits. This short article focuses on how risk – in the economic and legal sense – changes over time, and what this implies for patent licensing dynamics. Licensing negotiations are not static snapshots in time, they often evolve and change according to developing circumstances, case law, parties’ conduct, and many other factors.

High Court Asks U.S. Government for Input on Petition Accusing CAFC of Violating Seventh Amendment

The U.S. Supreme Court yesterday asked the Solicitor General of the United States to weigh in on a petition for writ of certiorari that claims the U.S. Court of Appeals for the Federal Circuit (CAFC) is depriving litigants of their right to trial by jury under the Seventh Amendment. The petition, filed in September by Olaf Sööt Design, LLC (OSD), asks the Court to take up the following question: “Whether the Seventh Amendment allows the Federal Circuit to reverse a jury verdict based on a sua sponte new claim construction of a term the district court concluded was not a term of art and construed to have its plain and ordinary meaning; where the Federal Circuit’s sua sponte claim construction essentially recasts a specific infringement factual question, previously decided by the jury, as a claim construction issue, to be decided de novo by the appellate court.”

Amici for Apple Tell SCOTUS Federal Circuit’s Article III Standing Ruling Violates Precedent, Upsets Congressional Intent in Enacting AIA Trials

In mid-November, consumer tech giant Apple filed a petition for writ of certiorari asking the U.S. Supreme Court to review the Federal Circuit’s decision to dismiss Apple’s appeal of unsuccessful inter partes review (IPR) challenges to the validity of several patents owned by Qualcomm. In that ruling, the Federal Circuit found that Apple’s choice to enter a patent licensing agreement with Qualcomm covering the patents-at-issue extinguished Article III standing as to Apple’s appeals from the Patent Trial and Appeal Board (PTAB). The question presented by Apple’s petition is: “Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.”

This Week in Washington IP: Votes Rescheduled for Stark and Vidal, Examining the Proposed COVID-19 TRIPS Waiver, and Impacts of Electric Vehicle Investments

This week in Washington IP news, following a cancellation last week, the Senate Judiciary Committee will vote this week on a series of nominations from the Biden Administrations to fill vacancies at both the Federal Circuit and the U.S. Patent and Trademark Office. In the House of Representatives, the Oversight Committee explores possible updates to the Federal Information Security Management Act in light of a spate of cyber attacks on federal agencies, while the Agriculture Committee focuses on the impact of electric vehicle investments in U.S. agriculture and rural communities. Elsewhere, the Federalist Society hosts an event with two former USPTO Directors on the potential impacts of the proposed TRIPS waiver for COVID-19 vaccines, and the Information Technology & Innovation Foundation explores the potential of a national strategic-industry policy in helping the U.S. meet the challenges of its competitive economic rival China.

Federal Circuit Will Soon Hear Case that Threatens the Statutory Presumption Afforded Copyright Registration

On January 13, the U.S. Court of Appeals for the Federal Circuit (CAFC) will hear oral argument in SAS Institute, Inc. v. World Programming, Ltd., a copyright infringement suit with far-reaching consequences for American creativity. SAS is a North Carolina-based software company, well known for its highly successful analytics software. World Programming, Ltd (WPL) is a British software company that, by its own admission, set out to “clone” SAS’s creative and popular software. The litigation that followed has been lengthy and stretched from North Carolina to the U.K. and back. While WPL largely prevailed in its home court, the litigation in North Carolina resulted in a verdict that WPL engaged in fraud and unfair and deceptive trade practices. The litigation in North Carolina did not decide the copyright infringement issues, so SAS was forced to file a separate suit, this time in Texas. But the judge in that case made a critical error, which is now on appeal.

IP Goes Pop! Season 2, Episode #7: Down in the Silicon Valley

This week on IP Goes Pop! fellow Volpe Koenig Shareholder Ryan O’Donnell joins co-hosts Michael Snyder and Joseph Gushue to explore the technical world of the TV show Silicon Valley, the intellectual property (IP) challenges faced by fictional compression algorithm company Pied Piper, and how realistic those challenges are to those of real-world tech start-ups.

New Vision Gaming’s Motion for Reconsideration Highlights Issues with Arthrex USPTO Director Review Mandate

In the last few weeks of 2021, patent owner New Vision Gaming & Development filed a motion for reconsideration  of a remand order issued by the U.S. Court of Appeals for the Federal Circuit. That ruling, entered in early December, remanded New Vision Gaming’s appeal of covered business method (CBM) review proceedings back to the Patent Trial and Appeal Board (PTAB) “for the limited purpose” of requesting Director review of the CBM review decisions under the U.S. Supreme Court’s Arthrex standard. New Vision Gaming’s recent motion for reconsideration raises several issues regarding the U.S. Patent and Trademark Office’s (USPTO’s) implementation of Director reviews under Arthrex, making this particular case an important one to follow through at least early 2022.

Unified Report: Reexaminations Double; Samsung, Apple and Google Dominate PTAB Filings

Reexaminations continue to gain favor, seeing a 47% increase over last year; the Patent Trial and Appeal Board (PTAB) sees fewer filings; and filings by non-practicing entities (NPEs) rose by 4%, according to Unified Patents’ 2021 Patent Dispute Report: Year in Review, published earlier this week. The PTAB saw a nearly 12% decline in filings from the previous year, whereas district court proceedings remained unchanged, said the report. It added: “Operating companies filed 5.5% less cases in district court and over 10% less filings at the PTAB.”

Other Barks & Bites for Friday, January 7: ITC Rules Google Audio Players Infringe Sonos Patents, China Bans Most Exclusive Music Licensing Agreements, French Data Regulators Issue Record Fine Against Google

This week in Other Barks & Bites: China unveils its goals for improving IP rights during the country’s 14th Five-Year Plan, even as the country’s copyright administration announces a ban on most exclusive music licensing deals; the Federal Circuit affirms the validity of Novartis patent claims over Chief Judge Moore’s dissent over the majority’s treatment of the written description requirement; the U.S. International Trade Commission (ITC) rules that Google audio players infringe upon Sonos patents and enters a limited exclusion order against their importation; Senator Tillis announces his intention to vote in favor of confirming Kathi Vidal as USPTO Director; hedge funds shed tech stocks at the highest rate in more than 10 years; Allele settles its patent infringement suit against Pfizer and BioNTech over their development of a COVID-19 vaccine; and French data protection regulators announce fines against American tech firms over their use of tracking cookies, including a record fine against Google.

Big Tech’s Great Patent Troll Smash and Grab

Big Tech’s patent troll narrative is really just the great Big Tech smash and grab. Jean Ann Booth explains in the Waco Tribune what patent trolls are by taking Big Tech’s cartoonish characterization as her own: Patent trolls are rich investors who buy up patents from failed startups just so they can sue companies commercializing the invention in order to extort their money. Extortion – that’s what patent trolls do. And they are wrecking U.S. innovation to boot. They sure sound scary. Patent trolls are indeed frightening. Flush with big bucks, Big Tech lobbyists pushed the patent troll narrative on Congress, the administration, and the courts, demanding that we gut U.S. patent law (the same U.S. patent law that drove over 200 years of American innovation) if we are to save American innovation. Government bureaucrats and politicians complied by smashing the U.S patent system. Now Big Tech can grab whatever technology they want.

Understanding the Latest Draft Policy Statement on SEPs Subject to Voluntary F/RAND Commitments (Part I)

Much like a biological ecosystem, the development, commercialization, and licensing of standardized technologies involves a delicate balance among many diverse and competing participants. The 2021 Draft Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments (hereinafter “the 2021 Draft Policy Statement”), however, appears to be primarily concerned with an issue faced exclusively by implementers when dealing with owners of larger patent portfolios, but without explicitly saying so. This observation is based on the 2021 Draft Policy Statement’s reference to the vague and ill-defined notion of patent “hold-up”.

USPTO Delivers on Senators’ Request for Deferred Subject Matter Eligibility Response Pilot

In March 2021, Senators Thom Tillis (R-NC) and Tom Cotton (R-AR) asked interim Director of the United States Patent and Trademark Office (USPTO) Drew Hirshfeld to “initiate a pilot program directing examiners to apply a sequenced approach to patent examination,” rather than the traditional “compact approach.” In response to that request, the USPTO today announced a “Deferred Subject Matter Eligibility Response (DSMER) Pilot Program” for nonprovisional patent applications, which is set to launch on February 1, 2022. According to the Federal Register Notice, pilot participants will be “permitted to defer responding to [subject matter eligibility] SME rejections until the earlier of final disposition of the application, or the withdrawal or obviation of all other outstanding rejections.” Applicants with qualifying applications—including a requirement that the first Office action on the merits makes both SME and non-SME rejections—will receive invitations to participate in the pilot.