Welcome to The SNIP, a monthly newsletter by Urška Petrovčič, Adam Mossoff, and Devlin Hartline of Hudson Institute's Forum for Intellectual Property. The SNIP offers a brief breakdown of the latest policy issues and case developments in intellectual property. 

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THE LATEST FROM HUDSON

Hudson Senior Fellow Adam Mossoff Publishes Issue Brief on Biomedical Innovation

On November 14, Professor Adam Mossoff—senior fellow and chair of Hudson’s Forum for Intellectual Property—published an issue brief urging Congress to oppose efforts to slip the Interagency Patent Coordination and Improvement Act into an end-of-Congress omnibus bill. Prof. Mossoff explains that any effort to circumvent the regular legislative process confirms the absence of a proven, evidence-based justification for the bill. But this bill is not just a solution in search of a problem; it will also grow the administrative state and portend a fundamental change in the U.S. patent system with special treatment of patent applications for biomedical inventions. Both threaten to undermine the patent system as a technology-neutral property rights system that has successfully promoted new innovations and spurred U.S. economic growth. In the face of such a bill, Prof. Mossoff says that Congress should heed the maxim in health care: “First, do no harm.”

The SNIP: In an issue brief on biomedical innovation, Hudson Senior Fellow Adam Mossoff urges Congress to follow the maxim “first, do no harm.”

Learn More:

• READ “For Biomedical Innovation, Congress Should Follow the Maxim ‘First, Do No Harm,’” Adam Mossoff, Heritage Foundation (November 14, 2022).

Hudson Institute Fellows Weigh In on Proposed Right-to-Repair Legislation

On November 2, Hudson Senior Fellow Adam Mossoff moderated a panel discussion with Hudson’s Devlin Hartline and Copyright Alliance’s Kevin Madigan on the relationship between the right-to-repair movement and the intellectual property (IP) rights granted to innovators and creators. Proponents of the right to repair argue that manufacturers should be required to do more to enable consumers to repair their own electronic devices, such as by mandating the disclosure of the keys to the “digital locks” that protect copyrighted works from unauthorized access and copying. The panelists note that some legislative proposals are unconstitutional because they conflict with federally protected IP rights. They also emphasize that the proposals would threaten the unprecedented success of the modern digital marketplace, which confirms the importance of federal IP rights for the U.S. innovation economy.

The SNIP: Hudson panel challenges right-to-repair legislation as unconstitutional and at odds with sound IP policy.

Learn More:

• WATCH: “Intellectual Property and the Right-To-Repair Movement,” Hudson Institute (November 2, 2022).

• READ: “Overbroad State Right-to-Repair Bills Would Violate Federal Copyright Law,” Devlin Hartline, IPWatchdog (November 2, 2022).

• READ: “State Right-to-Repair Laws Need to Respect Federal Copyright Laws: A Constitutional, Legal, and Policy Assessment,” Adam Mossoff & Devlin Hartline, Hudson Institute (August 22, 2022).

Hudson Institute Hosts Virtual Event on Musicians and Copyright

On October 12, Hudson Legal Fellow Devlin Hartline led a panel discussion entitled “How the Copyright System Works for Musicians Today” with professional musicians Benjamin Bierman, Amanda Colleen Williams, and David Lowery. The panelists address the obstacles that working musicians face in earning a living, from how streaming affects their livelihoods to the protection of their intellectual property rights. The panelists note that online music streaming poses significant challenges as well since songwriters and performers earn significantly less money from royalties than they previously did. Finally, the panel emphasizes that many today have normalized piracy and that education about the detrimental effects of piracy is crucial—an issue that the creative industries and policymakers have not yet properly addressed.

The SNIP: Hudson panel addresses challenges and opportunities for musicians in securing the fruits of their creative labors.

Learn More:

• WATCH: “How the Copyright System Works for Musicians Today,” Hudson Institute (October 20, 2022).

CASE DEVELOPMENTS

Nokia Scores Another Win in the Dispute with Oppo

On November 1, the UK Supreme Court rejected Oppo’s bid to further appeal the UK Court of Appeal’s decision to reject Oppo’s jurisdictional challenge in its clash with Nokia. The legal dispute between the two companies started in 2021 when Nokia sued Oppo for infringement of its cellular standard essential patents (SEPs) in the UK and other countries. Oppo sought to stay the case in England pending the outcome of the Chinese litigation, where Oppo countersued Nokia and asked a Chinese court to determine a global fair, reasonable, and nondiscriminatory (FRAND) rate for Nokia’s portfolio. Earlier, the UK Court of Appeal rejected Oppo’s request, reasoning that England is an appropriate forum to decide the disputes since Nokia has UK SEPs that it wishes to enforce against Oppo. The UK Supreme Court has now rejected Oppo’s request to further appeal the jurisdictional challenge, and through this, opened the door to the UK trial that began on November 22.

The SNIP: UK Supreme Court refuses to hear Oppo’s appeal seeking a stay of UK proceedings against Nokia pending the outcome of its Chinese litigation.

Learn More:

• READ: “Supreme Court Gives Nokia v Oppo Green Light in England,” Rory O’Neill, ManagingIP (November 2, 2022).

• READ: “Nokia Scores Major UK Victory over Oppo,” Angela Morris, IAM (November 1, 2022).

• READ: “Nokia and Oppo Battle in Full Swing Following UK Supreme Court Ruling,” Konstanze Richter, JUVE Patent (November 9, 2022).

• READ: “Chinese Smartphone Maker Can't Get UK Nokia Suit Paused,” Alex Baldwin, Law360 (July 12, 2022).

Apple Loses Appeal in UK Dispute with Optis

On October 27, the England and Wales Court of Appeal ruled in favor of Optis Cellular Technology in the patent infringement case brought against Apple. The court rejected Apple's argument that the Cupertino company should face no injunction, even if it has been found to infringe Optis' patents and refuses to commit to accepting a license on terms that the court will determine to be FRAND. The dispute between the two companies began in 2019 when Optis accused Apple of infringing eight of its patented key telecommunication technologies. All patents were declared as “essential to practice cellular standards,” and Optis has been committed to offering a license to those patents on FRAND terms. Optis said that it made a FRAND offer to Apple, but if the offered terms are not FRAND, they are willing to offer a license to Apple on whatever terms the court determines to be FRAND.

The SNIP: England and Wales Court of Appeal rules in favor of Optis in patent infringement case against Apple.

Learn More:

• READ: “Apple Loses Appeal in London Court in Long-Running Optis Patent Dispute,” Sam Tobin, Reuters (October 27, 2022).

• READ: “P.S., I Don’t Love You: UK Court Delivers Blow to Apple in FRAND Fight with Optis but Laments ‘Dysfunctional’ SEP Dispute System,” Eileen McDermott, IPWatchdog (October 27, 2022).

• READ: “Optis Cellular Technology LLC v. Apple Retail UK Ltd.,” England and Wales Court of Appeal (Civil Division) Decisions (October 27, 2022).