28 February

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With Congress Focused on Copyright, Industry Must Deliver Solutions to the Piracy Problem

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“With respect to digital piracy, the question is whether and to what extent the industry will be able to respond in a cooperative and comprehensive manner to any level that will make a difference, and whether it is already too late.” A recently released report from the Information Technology and Innovation Foundation (ITIF) argues that while there is no easy solution to the ongoing scourge of digital content piracy on the Internet, voluntary agreements between copyright holders and payment processors, advertising networks, domain name registrars, search engines, and other stakeholders can serve as an important complement to legislative and other efforts by governments. “Experience...

20 February

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Oracle Files Opening Brief at U.S. Supreme Court in Copyright Fight with Google

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In the latest stage of the Supreme Court battle between Oracle America, Inc. (Oracle) and Google, Oracle filed its opening brief with the Court on February 12. Google’s petition for a writ of certiorari was granted in November 2019 and asks the Court to consider: “1. Whether copyright protection extends to a software interface” and “2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.” The Court of Appeals for the Federal Circuit (CAFC) previously unanimously reversed a district court decision that held Oracle’s code as uncopyrightable, finding it well-established that...

19 February

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Bayh-Dole 40: Celebrating the Past, Protecting the Future

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“When Bayh-Dole is mentioned in the current political debate it’s misrepresented by alleging that it empowers the bureaucracy to take technologies away from their developers if their price isn’t “reasonable.” Of course, the law says no such thing.” It’s highly appropriate that the 40th anniversary of the Bayh-Dole Act occurs in a year as politically contentious as that in which it passed. In 1980, many predicted that our best years were behind us and that the United States would soon lose its place as the world’s economic superpower. Experts proclaimed the best remedy was to adopt the “Japan, Inc.” model, where...

18 February

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Time to Close the Gap: Is the PTAB Looking at Prosecution Histories in IPRs?

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“The gap between the scope of review required under Phillips and that implemented by the Board plainly does the public a disservice. The public has a right to rely on the prosecution history in order to understand the scope of a patent’s issued claims.” If a recent decision denying institution of an inter partes review (IPR) is any indicator, the answer to the question above seems to be no, the Board does not routinely review a challenged patent’s prosecution history—even when the history includes a prior Board decision construing claim terms at issue in the IPR. In Apple Inc. v. Uniloc 2017 LLC, IPR2019-00753,...

18 February

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Earth to Google: Here’s Why APIs Need to be Copyrightable

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On January 6, 2020, Google submitted its brief in Google v. Oracle, kicking off the Supreme Court case that many are calling the “copyright case of the decade.” The suit pits the search engine platform controlling 93% of the worldwide search market against Oracle, the owner of the ubiquitous Java program, which submitted its response brief last week. After attempting and failing to secure the rights to Java, Google decided to cease negotiating and instead replicated 37 API packages from the copyrighted program, a decision that precipitated the years-long lawsuit. Making Google Hum An API, or application programming interface, is what allows different parts of a computer program...

18 February

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This Week in Washington IP: Balancing Interests in Tech Exports, Predictive Analytics in Criminal Justice and Energy Storage Innovation

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his week in Washington IP events, it’s quiet on Capitol Hill as both the House of Representatives and the Senate enter work periods for the week following Monday’s Presidents’ Day holiday. However, the Center for Strategic & International Studies is hosting a series of events focused on situational awareness technologies for nuclear arms, the recent Privacy Framework from NIST and advances in energy storage technologies across the automotive and electrical grid industries. Elsewhere in DC, the Brookings Institution will explore issues involving the use of predictive AI analytics in the criminal justice system, and the Information Technology and Innovation Foundation...

17 February

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Six Years After Alice: 61.8% of U.S. Patents Issued in 2019 Were ‘Software-Related’—up 21.6% from 2018

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As an update to my posts from 2017 and 2019, it has now been more than six years since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Still, the IP bar awaits a clear and reliable test to determine when exactly a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none.” The USPTO’s Section 101 guidelines interpreting Alice—and the accompanying 46 examples—have not cleared the confusion, and Alice continues to distract the USPTO, courts, and practitioners from focusing properly on Sections 102 (novelty) and 103 (obviousness). The net effects still being increased cost, lower patent quality,...

17 February

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New USPTO Trademark Rules Seek to Streamline Filing and Crack Down on Fraud, But Could Increase Spam

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“Spam letters to trademark applicants and registrants have long been a plague of the industry, and the much lower barrier to sending unsolicited email [as a result of the email rule change] likely means this problem will continue.” UPDATE: At the eleventh hour, just before the rule was to take effect, the USPTO issued revised email address requirements to address concerns outlined below from the trademark bar and public about the potential for an influx of unsolicited communications to the trademark owner’s inbox. The revised rule allows applicants represented by counsel to use any email address for the “trademark owner,” so long as...

17 February

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WIPO and U.S. Copyright Office Team Up to Talk Copyright in the Age of AI

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Earlier this month, the U.S. Copyright Office and the World Intellectual Property Organization (WIPO) held a joint event titled, “Copyright in the Age of Artificial Intelligence” (AI) at the Library of Congress in Washington, DC. The event explored how global copyright law and intellectual property law, as well as broader policy, may currently address AI technology, and included dialogue about changes that may be needed. Panelists also shared how AI is being utilized now and what future technology deployment and innovation may look like. The event was part of a series of conversations organized by the U.S, Copyright Office and WIPO...

16 February

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Why eBay v. MercExchange Should, But Won’t, Be Overruled

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As anyone who follows the United States Supreme Court knows, the Court has historically been extremely fond of taking important cases with cutting edge issues, only to dodge the real issues and address some insignificant procedural or hyper-technical issue. Such disappointment is all too frequent, so Supreme Court watchers are seldom surprised when the Court passes on an opportunity to breathe clarity into otherwise unsettled waters. But what the Supreme Court did in eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006) was far more disappointing. In eBay, the Supreme Court decided to throw out longstanding and well-established Federal Circuit jurisprudence and...

With Congress Focused on Copyright, Industry Must Deliver Solutions to the Piracy Problem

Oracle Files Opening Brief at U.S. Supreme Court in Copyright Fight with Google

Bayh-Dole 40: Celebrating the Past, Protecting the Future

Time to Close the Gap: Is the PTAB Looking at Prosecution Histories in IPRs?

Earth to Google: Here’s Why APIs Need to be Copyrightable

This Week in Washington IP: Balancing Interests in Tech Exports, Predictive Analytics in Criminal Justice and Energy Storage Innovation

Six Years After Alice: 61.8% of U.S. Patents Issued in 2019 Were ‘Software-Related’—up 21.6% from 2018

New USPTO Trademark Rules Seek to Streamline Filing and Crack Down on Fraud, But Could Increase Spam

WIPO and U.S. Copyright Office Team Up to Talk Copyright in the Age of AI

Why eBay v. MercExchange Should, But Won’t, Be Overruled

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