Editor’s Note: This past week, Drew Clark’s column in the Deseret News of Salt Lake City, Utah, was on the importance of balance in our patent system. Click here for links to all of his Deseret News columns.
ASPEN, Colo. — As with many former mining camps in the Rocky Mountains, this one is best known for winter sports like skiing. But this mountain town has also developed a summertime niche: Hosting policy-makers seeking the cool air refuge from humid Washington summers.
This year, the refreshing breeze came in from the new head of the United States Patent and Trademark Office.
For nearly 20 years, Aspen in late August has been home to a small but influential gathering of the Technology Policy Institute. It gathers legislators, regulators, lobbyists and academics who seek to shape the course of policy surrounding information and communications technology.
Distressingly enough, this year’s theme was “The Government Back in Business: Revenge of the Regulators.” Whether the topic was network neutrality, securing cyber-defense, monitoring online privacy or dealing with dated topics like subsidizing telephone service, the record of the Obama administration does suggest that regulation is back in vogue.
Which is why it was so refreshing to hear luncheon remarks from Michelle K. Lee, the undersecretary of commerce for intellectual property and the director of the USPTO.
Lee, an electrical engineer, a business executive and a lawyer, has headed the USPTO since January. Unlike other agencies that seek to control cyberspace (think of the Federal Communications Commission, the Federal Trade Commission, or the U.S. Department of Justice’s antitrust division), the patent office is less of a regulator and more of a bureau of land records.
It dutifully records, examines and certifies the “claims” that are so important to the innovation economy.
As Lee recounted, only a few decades ago, intellectual property — patents, copyrights, trademarks and trade secrets — was tangential to core business assets like factories, plants, warehouses and inventory.
By contrast, today’s inventions, designs, algorithms and brands are closer to the center of economic value. Lee cited a government report showing that one-quarter of all jobs, and one-third of our country’s Gross Domestic Product, relies upon intellectual property.
All of this talk about the value of these intangible assets is to be expected from the nation’s chief cheerleader for intellectual property. Previous heads of the patent office or the copyright office have sung similar tunes.
What Lee did that was different was emphasizing the second point: “The importance of a balanced intellectual property initiative.”
What does it mean to have balanced patent laws?
It means that the inventor of a novel creation that is useful and not obvious can obtain a 20-year grant — a patent — for the right to exclude others from making use of that particular invention.
Hence the most critical role of the patent office is its ability to assess the individual claims that inventors make when they line up at the doors of the USPTO.
In the same way that a county land records office puts the public on notice of real estate claims of other landowners, patent office decisions publicly mark the terrain of innovation that has already been trod. This helps subsequent inventors know what has already been claimed. They can instead focus on something new.
Seen from this light, it’s clear that a bad patent — a decision that grants expansive patent claims to a purported invention — is as damaging as a bad real-estate title.
Lee highlighted the patent office’s dogged determination to weed out those bad patents that might have slipped through more careful examination through its “enhanced patent quality initiative.”
“There is a cost to society if we issue a patent that should not have been issued, just as there is a cost to society for not issuing a patent that should have,” she said.
At root, issues of patent quality are lurking behind the current congressional debate over so-called “patent trolls.” That term refers to those using a bogus claim and imposing the toll of litigation on innocent entrepreneurs creating jobs and economic growth. Lee said the Obama administration supported legislation to combat abusive patent litigation.
In this fight against “trolls,” USPTO was granted a new weapon with the creation of the Patent Trial and Appeal Board in the America Invents Act of 2012.
That law allowed the patent office to beef up the number of adjudicators capable of reviewing patent challenges through an expedited procedure that must be conducted within one year, significantly shorter than the timetable for litigating patent claims in federal court.
And in the three years since the board has been in existence, it’s received 3,655 petitions challenging patent claims. That’s three times the amount that the prior director expected under the law. Of those petitions, the board has struck down 25 percent of claims challenged as unpatentable innovations.
Striking down bad claims is good. And when that kind of balance is actively advocated by the USPTO, it’s a positive sign for the future of innovation.
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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