Posts Tagged: "DOJ"

On June 8, news reports indicated that U.S. Senators from both sides of the political aisle were confident that the American Innovation and Choice Online Act, advanced by the Senate Judiciary Committee this January, has the necessary votes to pass the Senate and move on to the U.S. House of Representatives. While several top Senate lawmakers continue to argue that the bill will enact much needed antitrust enforcement mechanisms against Big Tech, the bill has several critics and has raised midterm election concerns for some Senators facing tough re-election cycles.

In withdrawing the 2013 statement, the new 2019 guidance by the DOJ, NIST and the USPTO states the obvious, i.e. that there is no difference in the law between F/RAND assured standard essential patents and all other patents. While some would have perhaps liked to break the unitarity approach of the patent system so as to weaken remedies against the infringement of essential patents, a legal system that would apply a different standard to standard essential patents as opposed to other patents would violate U.S. trade obligations.

Earlier this afternoon, the United States Patent and Trademark Office (USPTO, National Institute of Standards and Technology (NIST) and the U.S. Department of Justice, Antitrust Division (DOJ), issued a Joint Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments (“2019 Joint Policy Statement”). This Joint Policy Statement explains that “[c]onsistent with the prevailing law… injunctive relief, reasonable…

A number of organizations, including Ericsson, Nokia, Philips, Qualcomm, the Innovation Alliance and the Licensing Executives Society, have sent two separate letters to U.S. Attorney General William Barr, USPTO Director Andrei Iancu, and Secretary of Commerce Wilbur Ross stating their support for the United States’ decision to withdraw the Department of Justice, Antitrust Division’s assent to the 2013 joint DOJ-U.S. Patent and Trademark Office “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” (the 2013 Joint Policy Statement). The letter sent by Ericsson, Nokia, Philips, and Qualcomm begins by explaining that those signing the letters collectively spend many billions of dollars annually to “the development of cutting-edge that substantially contribute to the social welfare and quality of life of U.S. consumers,” and “and employ tens of thousands of people in the U.S.” The letter goes on to explain that injunctions are necessary to address the widespread patent infringement that has occurred in recent years; infringement that risks innovators’ ability to continue to innovate and create next generation technologies. Without property protections it is economically irrational to invest the billions of dollars required to create cutting-edge technologies.

Increasingly, Delrahim’s speeches are moving past where he began in his USC speech in November 2017, discussing this being the appropriate time to now have a discussion about the proper role antitrust enforcement plays with respect to standard setting, to his LeadershIP April 2018 speech where he explained the Antitrust Division will not hesitate to enforce against collusive anticompetitive conduct detrimental to patent owners. Furthermore, Delrahim has now several times discussed his view that in a free market, competition based economy the remedy for patent owners violating obligations to SSOs is a contractual remedy, not an antitrust remedy.

It is no surprise to anyone that patent rights in the United States suffered enormously under the two terms served in the White House by President Barack Obama. That the Obama White House was uncomfortably close with Google is widely known, and Google has been the face and driving force of the lobby that supports weakening patent rights in America. What is far less clear, and extremely difficult to explain or understand, is why the Department of Justice continues to make arguments against patents. Indeed, in the DOJ brief filed in Oil States v. Greene’s Energy, the Solicitor General argues repeatedly throughout the brief that patents are not private property, but rather are a public right… At the very beginning of the brief filed by the DOJ in Oil States, in the Summary of the Argument, the DOJ stakes its claim and beings by arguing that patents are a public right (not private property) that is akin to a government-conferred franchise.

The lack of regulations here has led to the absolute worst-case scenario. People with disabilities have not been served since most companies are unaware this is an issue. Most don’t even realize this is something they have to consider until they receive a demand letter. That has certainly been the case for some of my clients. This leads to a scramble to get compliant. Unfortunately, it can take up to a year to do so depending on the complexity of the site. Meanwhile, plaintiffs’ attorneys across the country are taking advantage of the confusion. More than 260 website accessibility lawsuits were filed in 2016, and significantly more were filed by the end of 2017. But these numbers do not even begin to cover the cases that are settled pre-litigation.

For my wishes, I’ll make four. First, as I did last year, I again continue to wish for patent eligibility reform in Congress that would overrule Mayo, Myriad and Alice.With there major industry organizations coming out in 2017 to support legislative reform perhaps this wish will eventually come true, although as of now it seems to be a long shot in 2018. Second, I hope the Federal Circuit dramatically decreases its use of Rule 36 affirmances, and specifically stops using this docket management tool when cases are appealed from the PTAB and also with respect to appeals dealing with 101 patent eligibility issues. Third, I wish for the AIA post grant procedures to be declared unconstitutional, which with the Supreme Court set to decide Oil States in 2018 is at least plausible. Finally, assuming the Supreme Court does not do away with post grant challenges, I wish for the new PTO Director to dramatically reform the post grant process in ways that remove the systemic biases that have made the proceedings hopelessly one-sided against patent owners.

Unlike previous years where we had near unanimity on the biggest moments, this year we see wide variety of thought, from SCOTUS to Capitol Hill to the DOJ… Steve Kunin focus primarily on the Supreme Court patent cases, which Bob Stoll also mentions but then goes on to discuss the lack of momentum for more patent reform and the nomination of a new Director for the USPTO as key moments. Paul Morinville also mentions the political on Capitol Hill, but focuses on Members of Congress not buying into the patent troll narrative like they once did. Erik Oliver focuses on a rebound in the patent market, Alden Abbott sees a pro-innovation, pro-patent Assistant Attorney General for Antitrust as a dramatic shift for the DOJ. Ben Natter, Jess Sblendorio and Alexander Callo focus on the Supreme Court’s decision in Matal v. Tam, which declared the prohibition against registering disparaging trademarks unconstitutional.

On November 10, 2017, the Department of Justice’s (DOJ’s) new top antitrust enforcer, Assistant Attorney General (AAG) Makan Delrahim, delivered a powerful speech on antitrust law and policy enforcement towards intellectual property rights (IPRs). Former USPTO Director David Kappos described it as “the most important DOJ antitrust speech on IP during my decades practicing law”. … The speech clarifies that the new AAG views “any policy proposals with one-sided focus on hold-up with great skepticism because they pose a serious threat on the innovating process,” and submits that antitrust law should not be misused to police the private commitments such as FRAND that IP holders make to SSOs. In this, the speech agrees with the view shared by several scholars that FRAND commitments are contracts and a potential breach of those commitments may not be best suited under the purview of antitrust law and that “there are perfectly adequate and more appropriate common law and statutory remedies available to the SSO or its members”.

Why does U.S. policy with respect to patent owners and patent licensing seem to be in direct opposition to U.S. antitrust policy relating to vertical mergers? If vertical mergers are anticompetitive and particularly bad when dealing with a monopolist then why are patent owners, who we are told over and over again are in possession of a limited monopoly, encouraged (if not demanded) to vertically integrate in order to escape characterization as a patent troll?

The IP Licensing Guidelines, which state the agencies’ antitrust enforcement policy with respect to the licensing of intellectual property protected by patent, copyright, and trade secret law and of know-how, were issued in 1995 and are now being updated. In the agencies’ view, the IP Licensing Guidelines remain soundly grounded, as a matter of antitrust law and economics. Nevertheless, the agencies have determined that some revisions are in order because the IP Licensing Guidelines should accurately reflect intervening changes in statutory and case law.

When patents were brought up in the hearing, however, it seemed to focus mainly on their effects in the pharmaceutical world. Ramirez’s prepared remarks for the hearing touched on pay for delay in pharmaceutical patent infringement settlements, and she noted that the U.S. Supreme Court’s June 2013 decision in Federal Trade Commission v. Actavis has given the FTC a greater capacity to challenge pay for delay schemes in court. Ramirez also stated that a report on the FTC investigation into patent assertion entities (PAEs) will be made available sometime this spring.

New Zealand Judge Nevin Dawson handed down a ruling that would allow the United States to move forward with the extradition of Kim Dotcom, the founder of the former Megaupload.com, one of the world’s most popular file sharing websites at the height of its power. Kim and others involved with Megaupload have been sought under counts of criminal copyright infringement, racketeering, conspiracy to commit money laundering as well as aiding and abetting criminal copyright infringement. The original indictment, filed by the Department of Justice in the Eastern District Court of Virginia back in January 2012, alleged that Kim and other defendants were responsible for $500 million in harm to copyright holders.