⌛ Compulsory Licensing Under Copyright Essay

Wednesday, September 08, 2021 10:45:35 AM

Compulsory Licensing Under Copyright Essay

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And the vultures are circling I never met Prince Philip, or his wife and kids. My only interaction with the royal family ever was to walk across a stage during a graduation ceremony attended by a bored minor royal--the patron of the university I attended. They are, in a very real sense, strangers to me: no more familiar than Kim Kardashian or Elon Musk. And yet I'm expected to join in an orgy of vicarious synthetic grief and mourning and wrap myself in either a flag, or a black armband, or both I'm unclear. The sanctimonious right wing tone police are already out in force, marching in columns in every newspaper.

On top of the normal stentorian roar of monarchist calls for obedience, this time round we also have moralistic finger-wagging injunctions to observe social distancing because of COVID to remain silent behind closed doors, the royal funerary rites to invade our private spaces. The UK is ruled by a monarchy-obsessed reactionary Party and by Party I do not mean to identify the Conservatives: rather, it's the Party of the Establishment as embodied by the state itself. The media aligned with the monarchy-obsessed party can--and will--use this event to bury bad news or manufacture pretexts Look!

They're not wearing black! Or genuflecting obediently to power! Expect the government to use this grim-reaper-delivered opportunity to the max to bury bad news renewed rioting in Northern Ireland, the Scottish election, Brexit, COVID19 vaccine shortages, corruption and demand that we focus on the ritual of royal mourning instead of paying attention to current events. The cultural dynamic of celebrity drags the unthinking and unaware along with it. Humans like to watch the powerful we're descended from primates who live in troupes, after all , and the death of a member of the royal family is very much like the death of a film star, musician, famous-for-being-famous celebrity--it's ripe for exploitation for commercial or political ends.

Worse, looming on the horizon is the spectre of another royal funeral. The Queen is 94 years old and presumably a grieving widow. Losing a spouse after more than 70 years of marriage is like suffering an amputation of the soul, according to my mother, after a similar bereavement. She's probably not going to last out the current decade, even though her family is famously long-lived. Indeed, widows or widowers often follow their spouse relatively rapidly after such a long relationship: codependency withdrawal can kill.

And the usual vultures are circling. It's April 1st today, historically a day when persons of ill repute tried to prank one another into believing ridiculous things. However, this is the second year of the COVID19 pandemic, and also the year Brexit bites, and the second year in which British Prime Minister Clownshoes Churchill can tell any damn lie he feels like in the House of Commons without being called on it by the press, the public, or even the leader of the opposition. Take for example the recent release of the Commission on Race and Ethnic Disparities , which in other years would be an epic-level April Fool's Day trolling exercise it purports to prove that the UK is a tolerant, multicultural, ethnically diverse paradise that has abolished structural racism and in which non-white people experience no discrimination whatsoever, they're just imagining it.

It's clearly a joke, having been commissioned by the jester prime minister himself, who wrote during his career as a journalist and editor of "picanninies with watermelon smiles" and described veiled muslim women as "letterboxes", and let's not even get into his overt homophobia. Ha, ha, ha. Shakes rattle at monarch, squeezes pig's bladder to make farting sound. And yet here we are, expected to believe a rigged report from a committee so incredibly unsure of itself that they had to name it "C. It is therefore no surprise that as of , the April Fool tradition has been declared to be obsolete by the International Trade Commission subcommittee on Humor.

Henceforth, trading in April Fool's japery is banned and may result in suspension of social media accounts and blogging privileges and an international treaty criminalizing the propagation deceptive and malign jests will relieve us of the onerous obligation to evaluate material we see on the internet skeptically for at least one day every year. Indeed, I'm going to set up a petition to the committee to consign April the 1st to the status of damnatio memoriae —its name to forever be stricken from memory and banned from utterance. Where it's necessary to mention it for calendrical purposes it will be referred to as "March 32nd", and it will be followed sequentially by "April 2nd": when I've got the petition website up I'll post details here, and I encourage you all to sign it.

I don't often comment on developments in IT these days because I am old and rusty and haven't worked in the field, even as a pundit, for over 15 years: but something caught my attention this week and I'd like to share it. This decade has seen an explosive series of breakthroughs in the field misleadingly known as Artificial Intelligence. Most of them centre on applications of neural networks, a subfield which stagnated at a theoretical level from roughly the late s to mid s, then regained credibility, and in the s caught fire as cheap high performance GPUs put the processing power of a ten years previous supercomputer in every goddamn smartphone.

Every time you add an abstraction layer to a software stack you can expect a roughly one order of magnitude performance reduction, so intuition would suggest that a WebAssembly framework based on top of JavaScript running inside a web browser hosted on top of a traditional big-ass operating system wouldn't be terribly fast; but the other day I was reading about one such framework which, on a new Apple M1 Macbook Air not even the higher performance Macbook Pro could deliver GFlops, which would put it in the top 10 world supercomputers circa In a scripting language inside a web browser on a laptop.

NNs, and in particular training Generative Adversarial Networks takes a ridiculous amount of computing power, but we've got it these days. And they deliver remarkable results at tasks such as image and speech recognition. Sure they need internet access and a server farm somewhere to do the real donkey work, but the effect is almost magically If you've been keeping an eye on AI you'll know that the real magic is all in how the training data sets are curated, and the s axiom "garbage in, garbage out" is still applicable.

One effect: face recognition in cameras is notorious for its racist bias, with some cameras being unable to focus or correctly adjust exposure on darker-skinned people. Similarly, in the 90s, per legend, a DARPA initiative to develop automated image recognition for tanks that could distinguish between NATO and Warsaw Pact machines foundered when it became apparent that the NN was returning hits not on the basis of the vehicle type, but on whether there was snow and pine forests in the background which were oddly more common in publicity photographs of Soviet tanks than in snaps of American or French or South Korean ones. Trees are an example of a spurious image that deceives an NN into recognizing something inappropriately.

And they show the way towards deliberate adversarial attacks on recognizers—if you have access to a trained NN, you can often identify specific inputs that, when merged with the data stream the NN is searching, trigger false positives by adding just the right amount of noise to induce the NN to see whatever it's primed to detect. You can then apply the noise in the form of an adversarial patch , a real-world modification of the image data being scanned: dazzle face-paint to defeat face recognizers, strategically placed bits of tape on road signage, and so on.

As AI applications are increasingly deployed in public spaces we're now beginning to see the exciting possibilities inherent in the leakage of human stupidity into the environment we live in. The first one I'd like to note is the attack on Tesla car's "autopilot" feature that was publicized in Or, more prosaically, you could in principle sticker your driveway or the street outside your house so that Tesla autopilots will think they're occupied by a truck, and will refuse to park in your spot. But that's the least of it.

It turns out that the new hotness in AI security is exploiting backdoors in neural networks. NNs are famously opaque you can't just look at one and tell what it's going to do, unlike regular source code and because training and generating NNs is labour- and compute-intensive it's quite commonplace to build recognizers that 'borrow' pre-trained networks for some purposes, e. And it turns out that you can purposely create a backdoored NN that, when merged with some unsuspecting customer's network, gives it some To work this out, CLIP learns to link a wide variety of objects with their names and the words that describe them.

CLIP can respond to concepts whether presented literally, symbolically, or visually, because its training set included conceptual metadata textual labels. And it doesn't stop there. By forcing the finance neuron to fire, we can fool our model into classifying a dog as a piggy bank. The point I'd like to make is that ready-trained NNs like GPT-3 or CLIP are often tailored as the basis of specific recognizer applications and then may end up deployed in public situations, much as shitty internet-of-things gizmos usually run on an elderly, unpatched ARM linux kernel with an old version of OpenSSH and busybox installed, and hard-wired root login credentials. I've been saying for years that most people relate to computers and information technology as if they're magic, and to get the machine to accomplish a task they have to perform the specific ritual they've memorized with no understanding.

It's an act of invocation, in other words. UI designers have helpfully added to the magic by, for example, adding stuff like bluetooth proximity pairing, so that two magical amulets may become mystically entangled and thereafter work together via the magical law of contagion. It's all distressingly bronze age, but we haven't come anywhere close to scraping the bottom of the barrel yet. With speech interfaces and internet of things gadgets, we're moving closer to building ourselves a demon-haunted world.

Lights switch on and off and adjust their colour spectrum when we walk into a room, where we can adjust the temperature by shouting at the ghost in the thermostat, the smart television which tracks our eyeballs learns which channels keep us engaged and so converges on the right stimulus to keep us tuned in through the advertising intervals, the fridge re-orders milk whenever the current carton hits its best-before date, the robot vacuum comes out at night, and as for the self-cleaning litter box Well, now we have something to be extra worried about, namely the fact that we can lie to the machines—and so can thieves and sorcerors.

Everything has a True Name, and the ghosts know them as such but don't understand the concept of lying because they are a howling cognitive vacuum rather than actually conscious. Consequently it becomes possible to convince a ghost that the washing machine is not a washing machine but a hippopotamus. The end result is people who live in a world full of haunted appliances like the mop and bucket out of the sorcerer's apprentice fairy tale, with the added twist that malefactors can lie to the furniture and cause it to hallucinate violently, or simply break. Or call the police and tell them that an armed home invasion is in progress because some griefer uploaded a patch to your home security camera that identifies you as a wanted criminal and labels your phone as a gun.

Finally, you might think you can avoid this shit by not allowing any internet-of-things compatible appliances—or the ghosts of Cortana and Siri—into your household. And that's fine, and it's going to stay fine right up until the moment you find yourself in this elevator So, a few weeks ago I was chewing over COVID19 on Mars insert any other pandemic here , a discussion of how a Musk-initiated Mars colony circa might handle an aggressive viral pandemic.

I personally think this is a stunt, but an interesting one: BtC is a commodity in a bubble; if it goes up, Tesla turns a profit, and if it goes down it's a tax write-off. As Tesla is currently ridiculously over-valued this therefore looks like a smart way of hedging against some of their risk. But it got me thinking about SpaceX Some of you have read Neptune's Brood , right? On Earth it would function as a cryptocurrency backed by the Mars colony. Blockchain is used for transactions. However, the proof-of-work in generating a MuskCoin is non-algorithmic: you transmit a digital certificate for your shiny new coin to MuskBank on Mars, where it is countersigned with a string from MuskBank's One Time Pad, which was generated on and only exists on Mars.

The blockchain is then updated—from Mars. MuskCoin is required in payment for cargo capacity on Earth-to-Mars shipping, or for purchasing real estate on Mars. It has a floating terrestrial exchange rate: the idea is that it's used for mediating interplanetary exchanges. Unlike Bitcoin there's a central bank and an anti-forgery mechanism. It's not inherently deflationary like Bitcoin, because the Martian Central Bank can if necessary generate a new one time pad and add its checksum to the blockchain, expanding the money supply. The proof of work doesn't inflate over time, either—it remains constant, and is ridiculously hard to forge the only reasonable mechanism would be to figure out how to derive the one time pad from the published checksum, which should be impossible.

And given its founder's ego issues, the unit of currency will be the Elon. Conversion between Elons and regular fast money: you use it to acquire title to a chunk of land on Mars, then put it on the real estate market. When somebody buys it, you get your exchange rate. One side-effect of it being Mars-backed is Mars has a shallower gravity well than Earth: once the colony is up and running and eating its own dogfood in terms of semiconductor and high-end space-rated fabrications , it may be cheaper to buy satellites and other spacecraft from Mars than to lift them from Earth, as long as you schedule their launches years in advance. However, that's a long-term consequence.

The main point is that it provides a way to loosely couple the Martian economy with Earth's, without locking Mars into fiscal interdependency with other-planetary economic cycles. Note that I have certain ideological assumptions: namely that BitCoin itself is a highly inappropriate currency for anyone, much less an embryonic Mars colony. It's designed to promote Libertarian values, is inherently deflationary, and ridiculously wasteful of energy, all of which are liabilities when you live in a tin can on a lump of rock with no air.

Interplanetary colonies for at least the first couple of centuries are going to be highly regimented collectivist institutions, more like a s Kibbutz than a libertarian utopia. But any sufficiently large colony will eventually need to interact at a macroeconomic level with its neighbors—Mars will get out of the inevitable early Juche phase fairy soon, or Mars will die—at which point some species of currency seems desirable. However, one that is directly exchangable with existing terrestrial currencies is an invitation to disaster if nothing else it renders the Mars colony vulnerable to speculators on Earth. As the cover copy says:. This is going to be available as a hardcover and ebook.

I emphasize that it's not a full novel, but a rather short novella—about 90 pages. Incoming 1-star reviews on Amazon and Goodreads ahoy: "Too short: this is a rip-off! It's one of two planned novellas I need to write before the final full-length Laundry novel about Bob et al; I found myself blocked by current events from roughly , hence the switch of direction in Dead Lies Dreaming , which is the start of a separate ongoing series. British readers: you have not been forgotten! None of them have been released in the UK so far. However, once I write the last planned novella, there'll be enough for a full sized Laundry short story collection, which of course will show up in the UK in due course.

Invisible Sun was previously due out in January, and a lot of folks are asking me why their pre-order has been cancelled and bookstores are saying it's out of stock. What happened was a perfect storm, for a book originally due for publication in First, my editor David Hartwell died suddenly and unexpectedly. David was the main impetus behind the entire Merchant Princes series, and he commissioned the new trilogy: his death not only deprived me of a friend but disrupted the project and threw Tor's entire editorial workflow into chaos for a while. Then, in my father became unwell and died a week after his 93rd birthday. Work staggered on, and then in my mother had a series of strokes and ended up in a nursing facility: her health declined and she died in mid a week after her 90th birthday.

Losing your editor and both parents in the space of 3 years is not a productivity-enhancing experience, to put it mildly, and my mid-crisis attempts to get the capstone of a million-word saga to gel were not good. But I finally completed work on a fifth re-write of Invisible Sun and sent it to my agent for delivery COVID didn't actually kill anyone I was directly working with, but it disrupted my publishers—editorial are all working from home these days—and shut down their printers for a few months.

Hence the delay. But despite all the deaths, despair, and pandemic, Invisible Sun is now with the production department at Tor and it will arrive on September 28th, unless a dinosaur-killer asteroid gets us first. And it's the longest book in the series by quite a margin: I had a lot of plot threads to wrap up, and only a limited stockpile of nuclear weapons this time round! Third up —you weren't expecting this, were you? I don't normally talk about books before the publishing contract's signed, but as the paperwork is in the pipeline and the book is actually with an editor already, I think it's now safe to mention that In His House is the sequel to Dead Lies Dreaming.

Barely a week has passed since the end of the previous story before Eve learns that her plan to sideline Rupert might not have worked as intended: meanwhile, on the other side of London, the nefarious Thieftaker-General is preparing to bid for a government contract, the Banks children are about to meet their new nanny, and Wendy Deere has been asked to investigate why human DNA traces are showing up in the butcher counter produce of a supermarket. All these plot strands converge in the dungeons under a castle in the Channel Islands, where Rupert's plan to summon a blood drenched horror is about to bear strange fruit It might show up very late this year, or it might be delayed until some time in I don't know, but I'll update you when I have something concrete to report.

In the meantime I'm pushing on with Bones and Nightmares , the third book in the sequence, although I might get diverted onto other projects by editorial request possibilities: that last Laundry novella, the long-overdue space opera, or even the last Bob novel. Watch this space. Time for a thought experiment! For those of us who don't want to keep chewing on the sore that is the US presidential succession—if you do, please stick to this already-existing discussion : cross-contamination into this new discussion will be dealt with harshly. Evidently SpaceX hope to fly Starship to orbit in the next years and land a Starship on Mars within this decade. Let's suppose it happens. Charlie's Diary Being the blog of Charles Stross, author, and occasional guests Empire Games and Merchant Princes : the inevitable spoiler thread!

By Charlie Stross. It's launch day for Invisible Sun in the UK today, so without further ado Continue reading Empire Games and Merchant Princes : the inevitable spoiler thread! Posted by Charlie Stross at on September 30, Comments Invisible Sun: signed copies and author events By Charlie Stross. Invisible Sun comes out next week! I'm also doing a couple of virtual events. Posted by Charlie Stross at on September 24, Comments If you haven't read any of the Merchant Princes books, what are they about? Let me tell you about the themes I was playing with.

Continue reading Invisible Sun: Themes and Nightmares. Posted by Charlie Stross at on September 12, Comments Fossil fuels are dead and here's why By Charlie Stross. Continue reading Fossil fuels are dead and here's why. Posted by Charlie Stross at on September 1, Comments This is a short expansion of a twitter stream-of-consciousness I horked up yesterday. Why is this important? Posted by Charlie Stross at on August 10, Comments So what happened to trigger this unexpected attack novel? Posted by Charlie Stross at on July 19, Comments So, without further ado Posted by Charlie Stross at on July 5, Comments Starship bloopers By Charlie Stross.

Posted by Charlie Stross at on May 31, Comments Because I am bored However, these aren't the only options. For example, to Elon Musk, a modest proposal: Hork up a bunch of space probes going somewhere of interest to JPL or NASA or ESA, as both a tax write-off and an apology to the international astronomical community whose night skies you just vandalized with Starlink. Code signing, that's what you do. PPS: I despise libertarianism. Just in case you were wondering Posted by Charlie Stross at on May 11, Comments A death in the Firm By Charlie Stross.

Arthrex, Inc. The Federal Circuit had previously issued an order remanding the case for assignment to a different panel, its earlier remedy for the Constitutional appointments issue with patent judges. As Andrew Karpan recently wrote , this order extends the effects of Arthrex to ex parte appeals. On their own, neither of these orders are that notable. They are nonprecedential orders that contain little more explanatory reasoning than a summary affirmance under Rule On the other hand, they were enough for Law authors to write about. This is not itself all that unusual. Historically, dispositive orders like these would vanish into the ether — becoming what Merritt McAlister recently characterized as Missing Decisions.

What I find is that the Federal Circuit is quite good about putting its opinions and Rule 36 summary affirmances on its website. But there are also a lot of missing decisions, which are concentrated in certain areas. Thanks to Dmitry Karshtedt for calling these two Law articles to my attention. The bill pushes this pride by requiring patent owners to record their ownership with the kicker that those who fail to record lose their right to punitive damages for any infringement that occurs prior to recordation. If a patentee fails to comply … no party may recover, for infringement of the applicable patent in any action, increased monetary damages under section during the period beginning on the date that is 91 days after the effective date of the issuance, assignment, grant, or conveyance with respect to the patent, as applicable, and ending on the date on which that issuance, assignment, grant, or conveyance is properly requested to be recorded.

This commonsense bill will achieve that goal and I look forward to working towards its passage this Congress. In exchange for the exclusive rights over an invention granted by a patent, the public has a right to know who owns the rights to particular inventions. We are working to ensure a fair innovation system for small businesses, non-profits, and independent entrepreneurs who have a right to know, without expensive litigation, who has the exclusive patent rights over a particular invention.

Tillis was a computer systems specialist who worked for Wang Labs. We all have a background in science or technology and we have all passed the registration exam and paid the accompanying fees. One problem: It seems that every year I have a law student who has a science or engineering degree that does not qualify in the list of appropriate Category A degrees bioengineering; or a PhD in Chemistry. In addition, that student might not satisfy Category B either because of the stringent requirement of two in-sequence lab courses in either chemistry or physics.

At times, my students have taken concurrent science class while in law school to make sure they qualify; others have taken the requirement as a sign that patent law is not the right field for them. One Solution: The USPTO has now finalized a set of rules that will help ease this process for my students, while still endeavoring to ensure that all patent attorneys and patent agents have a solid tech background. So far, the Supreme Court has not granted certiorari in any patent cases for its Term. Still, there are a couple dozen cases pending that may offers some interest. There are also a host of additional petitions scheduled for a later conference or not yet scheduled. Although the total number of petitions is down from last year, there is much more diversity since we have now largely moved past the appointments-clause issues.

Capacity to Sue : My favorite pending case is Tormasi v. Western Digital. Tormasi is a convicted murderer and also a patentee seeking to enforce his disk-drive patent. Tormasi argues that this conclusion violates his due process and other constitutionally protected rights. Australian Therapeutic Supplies Pty. I expect for the SG to file a brief by the end of calendar year And, there is a good chance that the SG brief will support the petition. At that point, there would still be time for the Court to grant certiorari and decide the case before the end of June American Axle asks two questions:. There are Am. Axle follow-on cases asking the same questions: iLife Technologies, Inc. Nintendo of America, Inc.

Apple, Inc. See also Mohapatra v. Hirshfeld pro se. Preclusion : I am generally interested in the concept of preclusion. This typically comes in the forms of issue and claim preclusion. Patreon, Inc. Kessler allows for non-mutual issue preclusion even in cases where the particular issue was not actually litigated or decided. EMD Serono, Inc. Printed Publication : A core patent law question is what can qualify as a printed publication under 35 U. Centripetal Networks, Inc.

Cisco Systems, Inc. Although dozens of briefs have subsequently argued this point, the Federal Circuit has refused to make any statement regarding its ongoing practice of no-opinion R. Ultratec, Inc. Aardvark Event Logistics, Inc. Mylan Laboratories Ltd. Janssen Pharmaceutica appealing institution denials ; Apple Inc. Utility : Hu v. Hirshfeld , focuses on a heightened utility requirement that seems to appear when a patentee seeks rights covering an invention that pushes the bounds of traditional scientific principles. Indefiniteness : Rain Computing, Inc.

Samsung Electronics America, Inc. The Federal Circuit uses an algorithmic approach: if a claim is interpreted under Section and the specification fails to include corresponding structure, then the claim is invalid as indefinite. The petition also argues that underlying issues of fact tending to show invalidity must be proven with clear and convincing evidence. Infinity Computer Products, Inc. Oki Data Americas, Inc. This is a remake of a video I made a few weeks ago. This time, I was able to go back to the s and show the most-common design patent titles from each era. To make the chart, I used a 14 year rolling average.

Thus, for example, the top list shown for is actually the top based upon the period The bulk of the data also comes via OCR of images and so there are some artifacts although I did read-through the first 1, design patents. New design patents have a term of 15 years from patent issuance — that is a 1 year bump from the 14 year term familiar to many patent attorneys. The straight year term took hold in The chart below is a bit hard to read, but it basically shows the percentage of design patents associated with each of the three potential patent terms.

It is a bit of a process, and I probably need a multithreaded approach. The original design patent Act of included a 7 year term. The patent system has seen tremendous change over the past decade. A large part of the transformation stemmed from the Leahy-Smith America Invents Act of that was enacted ten years ago in September Earlier this week, I conducted a quick survey of Patently-O readers asking for their thoughts on the impact of the AIA, which has repeatedly been heralded as the largest change to the U. We have about responses. Most of the survey question used a modified Likert Scale and asked about the importance of various statutory changes found within the AIA.

In order to run some statistics, I transformed the qualitative scale into a linear quantitative scale ranging from 1 not important to 5 very important. IPRs have been used to cancel the claims of thousands of patents as obvious — only a small percentage of those would have been found obvious by a jury. Although almost everyone agreed that IPRs were most important, Patent Attorneys and Patent Agents differed somewhat on other issues, with agents seeing changes to Section as relatively more important to other issues. This included eliminating the date of invention as relevant to patentability and narrowing the pre-filing grace period.

Patent Office employees were the only ones to say that the addition of satellite offices was important. Michelle Lee. The America Invents Act AIA , which passed on September 16, , brought about some of the most significant changes to our patent system in over 50 years. The Act included an assortment of reforms from a transition to first inventor to file in the United States, the establishment of processes for third party challenges to granted patents at the United States Patent and Trademark Office USPTO , the creation of the first regional offices of the USPTO, providing inventors the option for accelerated patent examination, and more.

Many of the AIA reforms strengthened our patent system. This enabled the USPTO to get through periods of government shutdown and to invest in longer-term initiatives such as much-needed information technology upgrades, hire more examiners to reduce the patent application backlog and provide additional training for examiners. The transition to a first inventor to file system was needed to harmonize the U. The establishment of the first regional offices of the USPTO made our intellectual property system more accessible to all, and of course, prioritized examination, allowing inventors to accelerate the examination of certain patents, makes business sense.

As a result, I undertook as a priority to assess how these fledgling and complex reforms were going, and to make improvements where needed. Under my leadership, the USPTO continued to solicit feedback on the AIA reforms via numerous requests for comments to proposed rules and stakeholder engagements. As anyone familiar with rulemaking knows, this process takes time, and that is the way it should be, as agency rules like legislation have significant and broad impact on all parts of our society. New rules and laws should be promulgated deliberately and with all due consideration of input from all stakeholders, driven by data, in compliance with the law, and with compromise to accommodate the often-times disparate and competing needs.

After the patent community had a reasonable period of time to adjust to and experience the many AIA reforms, we began hearing feedback about additional improvements needed to the AIA trials including, for example, in the areas of motions to amend, the claim construction standard and multiple petitions filed at or around the same time on a single patent. As expected for such complex policy and procedural matters, there was often little consensus on whether and what changes were needed.

Given this, my team and I at the USPTO believed it important to gather data and broad stakeholder input on these and other issues raised. As a result of these efforts, we came up with a number of proposed changes and drafted proposed rules for comment. For instance, on the claim construction standard, we recognized the awkwardness and inconsistency of having the validity of patent claims construed under one standard in AIA trials, yet a different standard for patent infringement analysis in federal district court, especially when the petitioner in the USPTO proceeding was often the accused infringer in district court. To provide greater fairness and consistency, I thought it important to change the claim construction standard for all patents in AIA trials to the Phillips standard used in federal district courts.

By this time, it was the fall of with an election pending. As was customary, the then-current administration asked the USPTO to stop all significant rulemaking to allow the next administration the courtesy of defining and implementing its priorities. So, we had to pull the package of proposed reforms in the midst of being prepared for publication. While not published during my tenure, these proposals, studies and data put the Agency and my successor, former USPTO Director Andrei Iancu, in a better position to implement needed reforms more quickly. I was pleased to see one of the first reforms implemented in the next administration was changing the claim construction standard in AIA trials to that used in district court for all patents.

Few people have had the privilege and responsibility of being the steward of this important Agency so critical to American innovation. As we await the nomination of a new USPTO Director, it is important to keep in mind the job of a USPTO Director is to keep a steady hand on the tiller and to make improvements thoughtfully and deliberately, with careful consideration of the law, stakeholder input and the data, recognizing that with complex policies and procedures and competing stakeholder interests, consensus is often difficult to achieve. Just as I benefited from the foundations laid and works-in-progress achieved by my predecessors, the next Director will benefit from the cumulative efforts and learnings of all prior Directors.

Our intellectual property system, like our innovations, is constantly evolving. Therefore, all stakeholders must constantly work together to achieve a balanced intellectual property system for the benefit of our inventors, economy and society. Lee may be affiliated. Sept 16, is the 10 year anniversary of enactment of the Leahy-Smith America Invents Act of You may have head about the U. Does that help explain why most patents are now directed toward methods rather than products?

Guest Post by Prof. Jorge Contreras of the University of Utah S. Quinney School of Law. Disclosure statement: in , the author served as an expert for HTC in an unrelated, non-U. Telefonaktiebolaget LM Ericsson , U. His vague charge appears to reflect the general uncertainty in this area, not only of the Texas district court, but of the entire judicial system. Though it was never a household name in the U.

These standards are covered by tens of thousands of patents around the world standards-essential patents or SEPs , a respectable number of which are held by Swedish equipment manufacturer Ericsson. Most standards-development organizations SDOs today recognize the potential leverage that the holders of SEPs may hold over manufacturers of standardized products. FRAND licensing commitments are designed to alleviate the risk that SEP holders will prevent broad adoption of a standard by asserting their patents against manufacturers of standardized products. Ericsson and HTC entered into three such licensing agreements in , and In , HTC and Ericsson began negotiations to renew the license.

Because the actual FRAND royalty or royalty range in a given case is generally viewed as a question of fact, the case was tried a jury, and each party submitted a set of draft jury instructions to the court. Ladies and gentlemen, there is no fixed or required methodology for setting or calculating the terms of a FRAND license rate. Judge Stephen A. See Garretson v. Clark , U. Accordingly, HTC argued that the district court erred by failing to give the jury specific instructions on apportionment. However, this case did not sound in patent infringement, but in breach of contract. As my co-authors and I have previously observed see p. For this reason, several U. D-Link Fed. Motorola 9th Cir.

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