Posts Tagged: "innovation"

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.”

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 Alarm.com 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, Alarm.com 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 Alarm.com 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.

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.

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.

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.

China Joins Hague System – Here’s Why You Should Care

An IP announcement that may have slipped past you in the last few weeks is that China will now become a part of the Hague System for the International Registration of Industrial Designs. The Act will officially enter into force on May 5, 2022. Does this make a difference to you and your clients? Yes, in a very, very big way. Back in the mid-1990s, I had a key client operating out of Hong Kong, prior to the transfer of sovereignty from the UK back to China. He had, by then, become the world’s largest “maker” and seller of vacuum cleaners. Yet, he had only a small staff, mostly engaged in shipping and monetary transactions, i.e., paying for and getting paid for goods he bought and sold to vendors across the globe located in developing world economies.

Report Recommends Worker-Centric Competitiveness Approach to Trade Policy

The Information Technology & Innovation Foundation (ITIF) this week released a report titled “A Worker-Centric Trade Agenda Needs to Focus on Competitiveness, Including Robust IP Protections.” The ITIF is a nonprofit, nonpartisan research and educational institute that focuses on technological innovation and public policy. The report explained that U.S. trade policy has long been contentious. Traditionally, trade policy prioritized U.S. consumer interests. However, in response to a decline in U.S. manufacturing jobs and output due to unbalanced trade, President Biden raised a “worker-centric trade agenda,” turning away from this traditional approach. In his shift to a “worker-centric trade agenda,” the report recommended that President Biden should reject the counsel of anti-corporate, anti-trade progressives who deny that U.S. companies’ interests align with U.S. workers’ interests. A new competitiveness-focused approach to trade policy can support both.

The SECRETS Act Adds a Critical New Defense Against IP Theft Threatening U.S. Tech Leadership

Intellectual property (IP) theft, especially of trade secrets, remains a significant threat to advanced U.S. industries, global competitiveness, and national security. It is foundational to the U.S. trade dispute with China, given state-sponsored efforts to steal as much American know-how as possible. Yet, instead of new laws and regulations, the United States has relied mainly on tariffs in an indirect effort to convince China to curb these illegal practices. That is, until now. As Congress and the Biden administration prepare to finalize competitiveness bills and set the country’s annual defense budget, they have an opportunity to advance another bill that will benefit American businesses and workers by combatting the Chinese threat to U.S. industries—the SECRETS Act, introduced last summer by Sens. John Cornyn (R-TX), Chris Coons (D-DE), and Todd Young (R-IN).

GIPC’s Tenth International IP Index: Reasons to Be Hopeful, But More Work to Do

The U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) today revealed its 2022 International IP Index, “Compete for Tomorrow,” which is now in its tenth edition. Last year, the report focused on the role of effective intellectual property (IP) frameworks in helping economies to combat and recover from the COVID-19 pandemic and identified several emerging economies that had made significant improvements. This year, the report analyzes ten years of data, which reveals that the global IP environment has steadily improved overall, including in the last two years of turmoil, and that emerging economies are particularly making a conscious decision to bolster their IP regimes.

Thaler Loses AI-Authorship Fight at U.S. Copyright Office

In an opinion letter dated February 14, 2022, the Review Board of the United States Copyright Office (Review Board) affirmed a decision of the U.S. Copyright Office (USCO) denying registration of a two-dimensional artwork generated by Creativity Machine, an artificial intelligence (AI) algorithm created by Dr. Stephen Thaler. Established by regulation in 1995, the Review Board is responsible for hearing final administrative appeals following two opportunities for a claimant to appeal copyright registration refusals. Thaler filed an application to register the computer-generated work, “A Recent Entrance to Paradise,” on November 3, 2018. On the application, Thaler listed Creativity Machine as the author of the work and indicated himself to be the claimant, with a transfer statement explaining he acquired ownership of the work because of his “ownership of the machine.”

Original Claims to Award-Winning Wireless Mic Tech Found Obvious at CAFC, But Narrowed Claims Upheld

On Friday, the U.S. Court of Appeals for the Federal Circuit (CAFC) agreed with the Patent Trial and Appeal Board’s (PTAB’s) decision that the original claims of Zaxcom’s U.S. Patent No. 9,336,307 for Engineering Emmy® and technical OSCAR award-winning wireless microphone technology were unpatentable as obvious. However, the court upheld the substitute claims Zaxcom had proposed. Zaxcom appealed the PTAB’s decision on the original claims in May of 2020, arguing that the PTAB misconstrued the patent claims and failed to properly consider evidence of industry praise.

USPTO Analysis of Patent Filings Finds No Single Company is Leading 5G Technology Development

Earlier this week, the USPTO released a report canvassing the current state of 5G technology attempting to “attain an informed understanding of the global competitiveness and economic vulnerabilities of United States 5G manufacturers and suppliers.” At the outset, the report noted that many other studies have been done to identify market leaders but have come to differing conclusions. The USPTO noted that “[g]iven differing outcomes in prior studies, this report examines multiple data sets using different methodologies, with a focus on the types of patent families and patent attributes that economists associate with greater significance or economic value.”

Clause 8 Podcast: Professor Dan Brown and Dan Jr.’s Patent Battle Against a Retail Giant

Prof. Dan Brown and his son, Dan Brown Jr., are straight out of central casting.  Prof. Brown, the father, grew up in a working-class Irish family on Chicago’s South Side before eventually becoming a professor of engineering at Northwestern University. Dan Jr. is a moppy-haired marketing genius who is now President of LoggerHead Tools.

Word Salad, Fact Confusion, and Lawyering: One Take on ParkerVision v. Qualcomm

Last month, I followed a hearing in a case called ParkerVision v. Qualcomm in Federal Court in the Middle District of Florida and reviewed the court briefs. This patent infringement case is potentially one of the largest of the year and is related to very important technology that miniaturized radio frequency (RF) transceivers, thus paving the way for the invention of the smartphone. Lawyer arguments in these hearings are very interesting, and you can learn a lot about the law. You can also learn how lawyers distort and twist the facts by confusing the court with word games, something I call word salad. Courts are pretty good at figuring out word games in most subject matter, but technology is foreign territory to many courts, so a well-tossed word salad can bring about an unjust decision.

Thank You, Senator Tillis, for Recognizing the Need for Evidence-Based Policymaking in Patent Law

Earlier this month, Senator Thom Tillis (R-NC) sent a letter to the U.S. Patent and Trademark Office (USPTO) and to the U.S. Food and Drug Administration (FDA), expressing concern about policymaking on drug patents and drug prices being driven by a narrative rooted more in policy goals than in actual data. He sent another letter to a policy organization, Initiative for Medicines, Access, and Knowledge (I-MAK), which has held itself out as go-to source for data on the number of patents covering drugs. I-MAK has become very popular; its drug patent numbers are invoked as fact by congresspersons, academics, congressional witnesses, and policy activists. Senator Tillis is to be commended for expressing serious concerns about the unreliability of drug patent numbers repeatedly invoked in the policy debates over drug prices in Washington, D.C. His letter to the USPTO and FDA requests that the agencies engage in an “independent assessment and analysis of the sources and data that are being relied upon by those advocating for patent-based solutions to drug pricing.”