Posts Tagged: "innovation"

Chairman of the Senate Judiciary Committeee’s Subcommittee on Intellectual Property, Senator Thom Tillis (R-NC), said last week that the subcommittee will  “explore increasing criminal penalties and opportunities for stepped up intellectual property enforcement to prevent counterfeiting and piracy during a hearing titled “World Intellectual Property Day 2019: The Role of Intellectual Property in Sports and Public Safety.” The hearing followed from the theme of this year’s World IP Day, “Reach for Gold: IP and Sports.” The sports industry witnesses and U.S. Senators in attendance emphasized that strong intellectual property frameworks, including enforcement, are critical to support successful global economies and provide health and safety protections for consumers of all ages, in addition to supporting wages for an effective work force.

On Monday, the International Intellectual Property Commercialization Council (IIPCC) gathered patent office and Federal Circuit experts, including current USPTO Director Andrei Iancu and former Federal Circuit Chief Judge Randall Rader, at the Capitol Building to discuss “The State of Innovation in the Union.” The panel was moderated armchair style and resulted in some poignant questions and answers from a few of the best-known players in the patent world. I attended the event, and at the end of the panel on which he participated I had the opportunity to ask Iancu what he thought about the current roundtables taking place in Congress and the efforts to reform Section 101. I reminded him that, at this time last year, he was giving speeches and testifying to Congress, saying to anyone who would listen that 101 should be something that we are all talking about and considering from a variety of angle. Then, as a newly minted Director, Iancu would tell Congress that if and when they were interested in engaging on 101 reform he and the Office would be ready to offer any assistance necessary. Congress seems to be working on the precursor to what will soon become legislative language. So, where does the Director stand on the issue today? His response was both correct, and something of a wake-up call. The final takeaway I think was that Iancu’s the only hope we’ve got, at least for the foreseeable future.“In the end, all three branches need to be rowing in the same direction on something like 101,” Iancu said. An obvious if seemingly cautious statement, but he did not stop there.

It has been a wild decade for the automotive industry, with U.S. auto brands almost dying in the Great Recession. Federal government intervention rescued brands and attempted to turn them toward efficiency instead of profitable large SUVs. Although there has been a steep increase in patent filings in the automotive space, U.S. companies have a smaller proportion of them, indicating global forces are a major threat. This is especially acute in the area of electric propulsion, where our early patent lead has plateaued. Many of the car brands and battery innovators have been sold to Chinese interests who are moving quickly with government support to dominate the car industry, at least for electric vehicles (EVs). Our study not only identified a set of applications that pertained to this industry, but also—for each application in this set—we determined whether the application pertained to one or more of the categories shown in the topology below. If so, the application was appropriately tagged, such that it could be included in one or more category-specific data subsets for subsequent analysis.

On October 11, the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA) was enacted into law after passing both the U.S. Senate and House of Representatives. The bill was drafted in order to modernize U.S. copyright law as it relates to the licensing of copyright protected music for use in digital streaming services such as Spotify or Apple Music. Such digital service providers (DSPs) may obtain a new kind of license created by the law, known as a blanket license, which covers the distribution of all musical works available for compulsory licensing. DSPs may then make these works available to consumers through covered activities, such as delivering digital phonorecords of musical works available in the form of a permanent download, a limited download or as an interactive stream.In short, the blanket license under the MMA allows Spotify and others to offer streaming music services without having to negotiate licenses with copyright-owning entities, including recording studios and songwriters. Instead, these streaming services would obtain a blanket license from the Mechanical Licensing Collective (MLC), another new feature of the MMA. The MLC is a non-profit entity responsible for administering blanket licenses to DSPs, collecting and distributing royalties, enabling copyright owners to claim ownership of musical works and administering a process by which royalties for works with unidentified owners are equitably distributed to known copyright owners. The statutory language of the MMA directs the Register of Copyrights to designate the membership of the MLC within 270 days of enactment of the law. Given the date on which the MMA was enacted, this would indicate that July 8 of this year is the deadline for Register of Copyrights Karyn Temple to designate the MLC that would start administering blanket licenses at the beginning of 2021. There are two groups that have proposed their own membership of the MLC to the Copyright Office: a coalition of major publishers from the music industry, including the National Music Publishers Association (NMPA), Songwriters of North America (SONA) and Nashville Songwriters Association International (NSAI); and the American Music Licensing Collective (AMLC), a collection of songwriters, musicians, tech developers and executives from smaller rights organizations and publishers within the music industry.

This week on Capitol Hill, the heated drug pricing debate is back in the spotlight, with a Senate Judiciary Committee hearing on intellectual property and the price of prescription drugs on Tuesday. In the House of Representatives, oversight hearings will examine both the activities of the U.S. Patent and Trademark Office and data security efforts made by the Federal Trade Commission. Off the Hill, The Cato Institute looks at U.S. cyber defense capabilities, and the week closes with a Brookings Institution event on China’s actions towards global tech dominance.

In our fourth article studying patent trends data across industries, we turn to the computational biology and bioinformatics industry. Computers have transformed many aspects of our everyday lives. However, much of drug-discovery, treatment testing and biology research is performed using the same wet-lab techniques developed decades ago. Rather recently, biotech companies have begun to capitalize on the impressive computational power, sophisticated models and skilled workforce to integrate computers into their operation. This integration can facilitate generating more accurate hypotheses, conducting more efficient tests and more thoroughly evaluating results. For example, modeling can be used to identify a set of therapeutics that have a physical structure complementary to a target, to better define a screen. Given that this valuable technological area sits at the intersection of biology and computers—which traditionally are associated with very different types of applications, examination and applicants—it is important to be well informed about the patenting arena when identifying patenting strategies.Our study not only identified a set of applications that pertained to this industry, but also—for each application in this set—it was determined whether the application pertained to one or more of the categories shown in the topology below. If so, the application was appropriately tagged, such that it could be included in one or more category-specific data subsets for subsequent analysis.

On June 19, it will be five years since the United States Supreme Court issued a decision in Alice Corp. v. CLS Bank, 134 S.Ct. 2347 (2014), which significantly changed the way courts and patent examiners evaluated patent eligibility of computer implemented innovation in the United States. While the Supreme Court ostensibly extended the patent eligibility analysis applied in the life sciences context that had previously been adopted in Mayo Collaborative v. Prometheus Labs., 132 S.Ct. 1289 (2012), even a cursory review of allowance rates from the USPTO and invalidity rates in federal courts shows that Alice changed the prevailing analysis in profound ways. We will be commemorating this anniversary on June 24-25 in Washington, DC with a dedicated event examining the damage, discussing real solutions, and offering strategies for innovators who need protection in these uncertain times (see below for more detail). Almost immediately after Alice, patent examiners started to issue new subject-matter eligibility rejections for computer implemented innovations using the abstract idea exception to the statutory categories of patent eligibility. “The ubiquity of subject-matter eligibility rejections in office actions exploded, leading many to wonder whether software implemented inventions remained patentable at all,” explained Kate Gaudry and Samuel Hayim, who have done a series of articles on IPWatchdog detailing their statistical analysis. “This effect was largely centered in business method art units of [USPTO technology center] (TC) 3600. For example, the number of allowances issued from business-method art units dropped from 24% in the months before Alice was decided to about 3% in months after.” For months there has been growing hope that a legislative fix spearheaded by a few dedicated Members of Congress would provide a solution. But in recent weeks, that hope is waning as the uncomfortable reality that big tech is dominating the discussions has started to set in.

A 2018 amendment to the Indian Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act”) makes it mandatory for a party to exhaust the remedy of mediation before initiating court proceedings under the Commercial Courts Act, with the limited exception of cases where urgent relief is being sought. Patent infringement disputes, being disputes of a commercial nature, are governed by the Commercial Courts Act and, therefore, the mandatory pre-institution mediation provision applies to such disputes. The time bound mediation procedure envisaged in this provision allows a patentee to not only bring a possible infringer to the negotiation table under the threat of future litigation but also allow patentees to resolve disputes in a timely manner by avoiding long-drawn litigation in Indian courts. Patentees can now consider a different strategy when considering steps for enforcement of patent rights in India in view of the possible advantages of such mediation proceedings discussed in this article.

This week in IP news: the CASE Act, which would create a small claims system for copyright claims, is reintroduced in both houses of Congress; Qualcomm earns a massive $4.5 billion payment from its settlement with Apple; the U.S. Supreme Court seeks input from the Solicitor General on Oracle v. Google; and China amends its trademark law, increases copyright actions, and earns more than one-third of all 5G SEPs.

In yesterday’s article, we discussed patent trends in the Internet of Things (IoT) industry, as part of our patent-trends study (performed in a collaboration between Kilpatrick Townsend and GreyB Services). Today’s article pertains to the Financial Technology (FinTech) industry, which is defined as technology used to support banking and financial services. In June 2014, the Supreme Court decided Alice v. CLS Bank, which nearly immediately made it much harder to patent a FinTech invention. This resulted in fewer FinTech patent application filings. Nonetheless, the use of bank accounts, credit/debit cards and money-transfer systems is ubiquitous, and protected innovations in this area offers a high potential value. Thus, it is essential to understand the industry and the patenting prospects, which can inform both R&D investments and patenting strategies.

In yet another pathetic result of the U.S. government crashing the patent system, Amazon announces it is a patent infringement court. I guess we can call it the District of Amazon Federal Court (DAFC). They claim a cheaper, faster alternative to traditional patent lawsuits. Ring a bell?  The last time I heard that we got the PTAB. This irony is judiciously served. First, Amazon used the patent system to differentiate themselves from their competitors with the one-click patent, thus gaining market share. Then the U.S. government crashed the patent system so that no small inventor or startup could challenge Amazon with improved technologies. With no challengers, Amazon monopolized.  

USPTO Director and Under Secretary of Commerce for Intellectual Property Andrei Iancu believes that “to a large extent … if they want to, the Federal Circuit can fix the problem” with patentable subject matter under Section 101. Speaking at the 27th Intellectual Property Law & Policy Conference at Fordham Law School on April 25, Mr. Iancu said the interpretation of Section 101 is “the most important issue of substantive patent law currently.” He added: “This issue must be addressed now in the United States.” The USPTO Director said there is consensus that the state of the law is unworkable: “Recent case law has created significant confusion in this regard.” But he added: “If you look at the Supreme Court cases by themselves, those cases are not the ones necessarily that have caused the problem. In the way those cases have been interpreted in the lower courts or at the USPTO itself, we have deviated from the core message of the Supreme Court to some extent.”

In yesterday’s article, we introduced our patent-trends study (performed in a collaboration between Kilpatrick Townsend and GreyB Services) and provided high-level data across industries. Today’s article pertains to the Internet of Things (IoT) industry. With the prevalence of WiFi, cellular modems and devices configured for short-range connections, IoT systems are becoming all the more ubiquitous and exciting. No matter how powerful and sophisticated a single device is, its efficiency and usefulness will very often remain capped if it cannot “talk” to other devices. Only through these communications can the device gain a more comprehensive view (e.g., corresponding to where users are, what computations or controls may be helpful, what computations or actions other devices are already performing or coordinating). Thus, we can begin to start thinking about specifications (e.g., efficiency, speed, memory, accuracy) of a device and instead think about specifications of a system. This presents a large number of important use cases.

Now that Apple and Qualcomm have made peace it would be easy to allow the case and the issues to recede into the background. That is likely what Apple would prefer, and almost certainly why Apple made the decision to settle with Qualcomm rather than proceed with trial. The case presented an existential threat for Qualcomm, which would have required the San Diego tech company to fight as if the company depended on victory–because it did.  What is most shocking is how successful Apple was in its coordinated effort to manipulate the licensing market and effectively extinguish any reasonable notion of a fair, reasonable, and non-discriminatory rate (FRAND) in the process. Meanwhile, fabricated licensing rates wholly unrelated to the Qualcomm portfolio were used by Apple to dupe regulators into chasing Qualcomm across the world for committing phantom antitrust violations.

This is the first in a thirteen-part series of articles authored by Kilpatrick Townsend that IPWatchdog will be publishing over the coming weeks. The series will examine industry-specific patent trends across 12 key patent-intensive industries. Companies are frequently faced with high- and low-level decisions concerning patenting. What should an annual patent budget be and/or how many new applications should be filed each year? Which technologies should be emphasized in the portfolio? For a given innovation, should a patent application even be filed? These questions are frequently evaluated by looking at internal factors, such as recent enterprise-wide profitability, executive sentiments towards patenting, and/or the perceived importance of individual projects. However, the effect of a patent is to exclude others from a given innovation space. If no other entity was or would be interested in making, using, selling, or importing a patented invention, one could argue that the patent was valueless. Conversely, if many others are actively developing technology within a space, a patent portfolio in that area may be particularly valuable. Thus, patenting decisions should factor in the degree to which others have interest in a given technology is trending-up or -down. Patenting data can serve as one indicator for this type of interest. However, it is difficult to collect patenting data at an industry level. While the patent office assigns an art unit and a class to each patent application, using one or more art units and/or classes as a proxy for an industry is both under- and over-inclusive. For example, a patent application related to an Internet of Things (IoT) industry may also relate to traffic lights, such that, even if there were art units specifically and only associated with either IoT or traffic lights (which there is not), statistics would be inaccurate: statistics pertaining only to an IoT art unit would not account for data corresponding to applications and assigned to the hypothetical traffic-light art unit, while statistics pertaining to both art units would be based on non-IoT applications assigned to the latter art unit.