Posts Tagged: "technology"

Reasonable compensation for standard essential patent (SEP) holders is crucial to create the incentives for adequate investments in standards. In particular, high-quality standards have underlain the development and proliferation of the global wireless technologies that have played such a central role in the innovation-driven growth of the internet economy. (For the key role of strong standards in technological innovation, see, for example, here, here, here, and here). It follows that the discriminatory reduction of compensation for SEP holders would reduce their incentives to participate and invest in standard setting. This in turn would reduce quality of future standards that will be key to economic growth and vitality.

Masimo’s legal team told the U.S. Court of Appeals for the Federal Circuit (CAFC) in a January 15 filing that the Exclusion Order Enforcement Branch (EOE) of U.S. Customs and Border Protection has cleared a redesigned version of the Apple watches that were banned by the International Trade Commission (ITC) in late October. The CBP’s decision has not been made public. According to the filing, the redesigned watches do not contain pulse oximetry technology, which was the subject of the ITC exclusion order. The decision, which has not been made public, removes any danger of irreparable harm alleged by Apple, according to the filing.

The intellectual property regime of the International Trade Commission (ITC) made mainstream news this year with its ban on Apple Watch importation and sales in the dispute between Masimo Corporation and Apple. While that dispute is ongoing and the subject of much coverage already, here are five other key IP cases with a variety of important rulings for parties at the ITC—particularly some outside of the typically patent-centric docket.

Today, U.S. Representatives María Elvira Salazar (R-FL) and Madeleine Dean (D-PA) introduced the No Artificial Intelligence Fake Replicas And Unauthorized Duplications (No AI FRAUD) Act of 2024 to create legal mechanisms by which Americans can prevent unauthorized uses of their likenesses and voices by generative AI platforms. The bill seeks to provide for intellectual property (IP) rights in an individual’s voice and likeness as well as remedies including statutory damages and disgorged profits.

In the book / movie “The Shining”, the Overlook hotel is haunted by ghosts involved in past wrongs committed on the property, presumably to make the current inhabitants atone for such sins. Notwithstanding this transcendental precedent, Judge Rodney Gilstrap recently declined to extend such a notion to patents subject to Fair, Reasonable and Non-Discriminatory (FRAND) licensing related obligations.

The dominance of Asian tech companies in the U.S. patent space and the impacts of growing backlogs in patent examination were major takeaways from the Top 50 U.S. Patent Assignees and Global 250 Lists, published by IFI CLAIMS on January 9. The patent database developer also released a Top 10 Fastest Growing Technologies list reflecting the strong global popularity of smoking, whether via electrical device or in traditional cigarette form.

On December 8, 2023, provisional agreement was reached between the European Union (EU) Parliament and the EU Council on the basic content of the new AI Regulation (the “AI Act”) to be implemented as legislation in the EU. The text is still not publicly available as it is subject to certain further refinement over the coming weeks. However, there is information available in the public domain (including press releases issued by the European Union) as to the likely format of the AI Act. Additional background on the legislative process towards the AI Act is available here.

On December 22, the U.S. Department of Health and Human Services (HHS) issued a notice and request for comments (RFC) regarding the United States’ negotiating position on a draft convention on pandemic preparedness being developed at the World Health Organization (WHO). The HHS’ RFC specifically targets certain portions of the draft convention that would impact intellectual property (IP) ownership, research & development, and technology transfer for pandemic-related technologies.

Recent debates about AI patentability have focused on whether the outputs of an AI system, such as a neural network, can be patented. Such debates have been spurred not only by recent general advances in the power of AI but also by Dr. Stephen Thaler’s “Artificial Inventor” project’s attempts to obtain patents on devices generated using his neural network-based DABUS software. If you thought that whether an AI-generated output can be patented is a cutting-edge question, then consider whether an input to an AI system, such as a prompt to a large language model (LLM), can be patented.

On December 27, the New York Times Company became the latest complainant to accuse OpenAI’s Large Language Model, ChatGPT, as well as Microsoft’s GPT-4-powered Bing Chat, of widespread copyright infringement. The Times alleges that Microsoft and OpenAI reproduce Times content verbatim and also often attribute false information to the Times. OpenAI has been sued by numerous creators and authors for training its chatbots on content found online, including non-public or copyright-protected content. For example, the Times included examples in its complaint in which prompts to ChatGPT asking it to reproduce paywalled content resulted in verbatim excerpts from the article in question.

Yesterday, the U.S. Court of Appeals for the Federal Circuit (CAFC) stayed the International Trade Commission’s (ITC’s) October 26 Limited Exclusion Order (LEO) against certain Apple Watches that the ITC found infringed on two Masimo patents that covered technology related to reading blood-oxygen levels. The CAFC does not appear to have published the order on its public website but it is widely available online.

Many IP attorneys have expressed concerns about complying with confidentiality duties while using large language models (LLMs). For example, in a recent panel at the U.S. Patent and Trademark Office (USPTO), multiple panelists expressed the opinion that attorneys should not perform LLM queries because LLM queries are stored remotely while Internet searches are not. The goal of this article is to explore, as examples, Google’s and OpenAI’s data retention policies and the intersection of those policies with attorneys’ confidentiality duties.

In Part I of our year end summary of key developments regarding patents subject to a commitment to license on a Fair Reasonable and Non-Discriminatory (FRAND) or Reasonable and Non-Discriminatory (RAND) basis, we looked at various developments involving patent pools and reviewed some interesting damages awards and interlocutory decisions. In this installment, we consider a pair of antitrust cases dismissed in 2023 and explore what may come next on the policy front.

Another year of IP is behind us, and it is time to reflect on what mattered most—what decisions will affect practice for years to come and/or continue to play out in the courts as we move into 2024? Below are reflections on milestones from this past year—some positive, some negative, and some neutral–at least for now.

Copyright exits everywhere—from books on a library shelf to music playing on the radio, to the software running the electronic device on which you are reading this article. Copyright’s broad scope and extensive reach foster a varied and fascinating landscape of copyright cases. From cases involving the use of a celebrity photograph, animated dancing video game characters, to artificial intelligence (AI) infringement inquiries, the number and type of matters copyright touches is seemingly infinite. This provides an evergreen bounty of copyright cases to digest. The following highlights some of the top copyright decisions of 2023.