WASHINGTON, March 1, 2011 — Top Obama administration officials moved to assuage American inventors’ fears Tuesday that a fundamental change being sought in the nation’s patent system won’t put them at a disadvantage.
“I know that there are serious concerns about the “first inventor to file” component of this legislation, but I want to assure you that first inventor to file is a win for all American innovators of all sizes, and in all industries, including the small independent inventor and small business communities,” said David Kappos, the administration’s Under Secretary of Commerce for Intellectual Property and Director of the United States Patent Office in a conference call with reporters.
“The first to file system is simpler, which enhances property rights in the innovation marketplace by providing greater legal certainty for small businesses, and the first inventor to file system of course requires proof that an applicant was the first inventor to file, meaning an inventor, and would not inside of a blind range of the patent office that would in any way disadvantage small businesses.”
The legislation currently being debated on the Senate floor would change the U.S. procedure for filing patents from a first-to-invent to a first-to-file system, in line with the way the rest of the industrialized world’s patent systems operate.
Independent inventors and small businesses in the United States have long opposed the push to change America’s system, saying that it would put them at a disadvantage to large corporations, which often set up an incentive system within their firms with the resources and staff to file thousands of patents a year.
In 2010, for example, IBM was granted almost 6,000 patents in the United States alone, putting it at the top of the list for the number of patents granted, according to ifi Claims Patent Services, a company that compiles and crunches data on patent filings.
The independent inventors’ and small business’ opposition, as well as division between industries, and within the information technology itself, has hamstrung the passage of patent reform efforts in the United States since 2005.
Some of the politics of patent reform have changed, and several court decisions have ameliorated some of the concerns that triggered the effort in 2005.
But the biggest names in Silicon Valley, including Google, Apple, Intel and dozens of others still oppose the senate legislation in its current form.
“Portions of the current bill – including the inter partes reexam, damages, and venue sections – remain objectionable to the technology community and we believe most stakeholders would support removing those sections,” wrote the members of the Silicon Valley coalition’s steering committee to the members of the senate in a letter dated February 28.
“In summary, there is no consensus on large parts of S.23. The Senate should not move forward until these provisions are improved or removed from the bill. Until these matters are addressed, we must oppose the bill.”
But the technology industry and industry at large are still divided on the merits of the current legislation emerging from the senate.
It enjoys the support of the Coalition for 21st Century Patent Reform, whose members include General Electric, Motorola, Eli Lilly and many other big corporations, as well as the National Venture Capital Association, the National Association of Manufacturers, the Association of American Universities, and others.
In addition, unlike previous years, the push to reform the patent system is for the first time a top presidential priority.
It is part of the Democrats’ and the administration’s long-term jobs creation agenda that seeks to fundamentally re-shape the U.S. economy to make it more competitive in the global economy.
“I’ve been in constant contact with Senator [Patrick] Leahy, and Congressman [Lamar] Smith, who chairs the House Judiciary Committee, and not only is there bipartisan support in the senate, but there’s a real desire and commitment by Congressman Smith to really advance this,” said Commerce Secretary Gary Locke during the conference call. “David Kappos and I and Cam Kerry in our general counsel’s office, we’ve been meeting with various industry leaders and their CEOs and their general counsels, and we’re really trying to identify any of the issues that are still remaining, and where there may be some division of views, and we’re trying to come to some compromises to get this enacted.”
The one issue that everyone agrees on, apart from, perhaps, the congressional appropriations committees, is that the USPTO needs more money to speed up its operations, and that congress needs to stop siphoning off the patent office’ fees.
The legislation addresses that issue, but it’s historically been a stumbling block in past patent reform efforts.
In recent testimony in front of a House Judiciary subcommittee, former Federal Circuit Chief Judge Paul Michel said: “In my judgment, fixing the problem of PTO funding is far more important than enacting those provisions in recent legislative proposals that would alter court practices or add new processes insdie the PTOif they further increase the PTO’s workload.”
Editor’s Note: The Intellectual Property Club will host a panel discussion on patent reform in the 112th Congress March 8th. Judge Michel will speak, as will a representative of the USPTO, BIO, and others. Join us!
Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights
February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.
Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.
Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.
The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.
The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.
In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.
Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.
“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.
Congress didn’t have a clue on digital rights
What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.
Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.
Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.
Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.
During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.
Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.
Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.
U.S. and EU Privacy and Intellectual Property Landscape Complicate Data Use Requirements
February 7, 2021 – Differences in the intellectual property and privacy landscape between Europe and the United States account are among the forces complicating the regulatory landscape around commercial data, partners at Covington’s Second Annual Technology Forum said on January 27.
Further, because intellectual property laws do not provide robust protection for databases, organizations are increasingly relying on contracts that define rights and restrictions to protect their data.
When learning how to best to handle data, companies need to know what sources it is coming from, said Lee Tiedrich, a partner at Covington. Knowing the type of data is quite important, he said, since data comes in many forms. For example, open or proprietary data should be handled differently than user contributions and scraped data that comes off of public websites.
Differences between U.S. and European intellectual property laws also factor into database protection. Clients need to know how to source data properly because they want to protect their rights to their data and reduce their liability risks, Tiedrich said.
There is no sui generis database protection in the U.S., a term which means databases do not have strong legal protections. This is not unusual as intellectual property laws in the U.S. typically do not provide protection for databases, said Tiedrich.
From a EU legal perspective, there may be some form of IP protection in data but that does not eliminate privacy requirements applying to that data, said Freddie Argent, a partner at Covington.
The panelists also discussed key terms of contracts for data licensors. Data licensors need to employ best practices, have standardized terms, and apply consistency across deals, said Adrian Perry, partner at Covington. Terms of service and privacy policies require clarity with the licensee acknowledging and accepting it, Perry added.
In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright
October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.
The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.
The company has sued Google for more than $9 billion in damages.
Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.
Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.
He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.
“Google had the right to do this,” said Goldstein.
Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.
Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.
“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.
“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.
Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.
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