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 Panel Assesses State IP Infringement and Sovereign Immunity

Hudson Institute hosted a panel discussion exploring state-led IP infringement and recent developments that are challenging the status quo on state sovereign immunity. The 11th Amendment generally immunizes states for liability for IP theft. However, in Allen v. Cooper, the Supreme Court confirmed that under the 14th Amendment, Congress can abrogate state sovereign immunity if the infringement is (1) widespread and persistent, (2) intentional or reckless, and (3) unremedied under state law. In the past, courts have held that Congress lacked sufficient evidence to justify legislation abrogating state sovereign immunity. The panelists discussed the recent studies released by the U.S. Copyright Office and the U.S. Patent & Trademark Office on the nature and scope of state IP infringement and whether this new evidence meets the standard set by the Supreme Court.

The SNIP: Expert panel discusses recent government reports on state IP infringement and Congress’ power to abrogate state sovereign immunity.

LEGISLATION & POLICY DEVELOPMENTS

Kathi Vidal Nominated as Director of U.S. Patent and Trademark Office

President Biden has tapped Winston & Strawn partner Kathi Vidal to serve as the next Director of the U.S. Patent and Trademark Office (USPTO), pending confirmation by the Senate. Ms. Vidal, who leads the firm's Silicon Valley office, has extensive experience as a patent litigator, and she has represented companies such as Microsoft, Tesla, Intel, and Spotify. If confirmed, Ms. Vidal will succeed Andrei Iancu, who made progress in instituting important reforms in both patent eligibility doctrine in examination of patent applications and in the practices and rules in the Patent Trial and Appeal Board (PTAB).

THE SNIP: President Biden nominates Kathi Vidal, an experienced patent lawyer, to serve as Director of the USPTO.

Learn More:

• READ: “Kathi Vidal Has Been Nominated to Head USPTO,” IPWatchdog (October 26, 2021).

• READ: “Biden Nominates Winston & Strawn Partner Kathi Vidal to Lead USPTO,” Blake Brittain, Reuters (October 26, 2021).

• READ: “Vaccine, Drug Patents on Deck for PTO Director Nominee Vidal,” Ian Lopez, Bloomberg Law (October 29, 2021).

Former USPTO Directors Urge Biden Administration to Protect Standardized Technologies

On November 3, 2021, David Kappos and Andrei Iancu—former Directors of the U.S. Patent and Trademark Office (USPTO)—published an article urging President Biden to maintain a balanced approach towards standard essential patents (SEPs). The article comes after President Biden tasked the Attorney General and Secretary of Commerce with revisiting a 2019 Policy Statement on Remedies for SEPs, a policy document that clarified that the same remedies are available for the infringement of all patents, including SEPs. In this important bipartisan article, Directors Kappos and Iancu emphasize that a balanced approach towards SEPs, such as ensuring the same balanced legal remedies are available for the infringement of all patents, is essential to encourage and support American innovation, increase competition, and prevent economic consolidation.

THE SNIP: Hon. David Kappos and Hon. Andrei Iancu authored a bipartisan article emphasizing importance of protecting SEPs to encourage innovation and promote competition.

Learn More:

• READ: “Biden Administration Should Preserve Strong Patent Prosecution for Standardized Technology,” David J. Kappos & Andrei Iancu, RealClearPolicy (November, 3 2021).

• READ: “Policy Statement on Remedies for Standard-Essential Patents Subject to Voluntary F/RAND Commitments,” Walter Copan, Makan Delrahim, & Andrei Iancu (December 19, 2019).

Legal Scholars Urge Against the Use of Antitrust to Undermine Patent Owners’ Rights

On October 19, 2021, Hudson Institute Senior Fellow Adam Mossoff along with several scholars including the Honorable Paul Michel, former Chief Judge of the Federal Circuit (ret.), published a white paper discussing the importance of the New Madison Approach (NMA) previously adopted by the Antitrust Division of the U.S. Department of Justice (DOJ).

The NMA is an important policy for ensuring a proper respect for the rights of innovators whose patented inventions, especially in standardized technologies, are principal drivers of the U.S. innovation economy. In the past year, antitrust officials at both the DOJ and the Federal Trade Commission appear poised to return to a counterproductive policy of overly aggressive antitrust attacks on patent licensing generally and SEP licensing specifically. The white paper explains how this policy choice would negatively impact U.S. economic growth and technological leadership and urges the Biden Administration to maintain the NMA approach which incentivizes commercial investments and developments in new technologies.

THE SNIP: White paper explains why antitrust officials should retain policies that protect patent owners’ property rights and promote U.S. economic growth.

Learn More:

• READ: “Putting Innovation First: The “New Madison Approach” to Patent Licensing and Antitrust,” Alden Abbott et al., Regulatory Transparency Project (October 19, 2021).

• READ: "The ‘New Madison’ Approach to Antitrust and Intellectual Property Law," Makan Delrahim, U.S. Department of Justice (March 16, 2018).

CASE DEVELOPMENTS

Intellectual Ventures Sues General Motors, Toyota, and Honda for Patent Infringement

On October 19, 2021, Intellectual Ventures (IV) filed a lawsuit against car manufacturers General Motors, Toyota, and Honda for the infringement of thirteen patents covering wireless communications used in connected vehicles. One of the asserted patents, for example, covers a technology that helps control the speed of a vehicle depending on its GPS location. This suit comes after IV filed a complaint several years ago against multiple car manufacturers in the International Trade Commission, but it failed to obtain an exclusion order in this earlier case.

The SNIP: Intellectual Ventures sues several car manufacturers for infringing its patents covering wireless communications used in connected vehicles.

Learn More:

• READ: “IV Hits GM, Toyota, Honda with Network Patent Suits in Texas,” Craig Clough, Law360 (October 19, 2021).

• READ: “Patent Filing Roundup: Intellectual Ventures Jumps Stalled Car Campaign; DJ Against Mystery Sons of Innovation LLC; Another Hundred Suits Dismisses,” Jonathan Stroud, IPWatchdog (October 28, 2021).

• READ: “Honda, Toyota Imports Cleared in ITC Infringement Review,” Hailey Konnath, Law360 (July 24, 2019).

Copyright Termination Claims on the Rise as Marvel and Others File Suit

Numerous lawsuits have been recently filed as the 1976 Copyright Act provisions granting authors the right to terminate previously transferred copyrights have gone into effect. In one high-profile lawsuit, Marvel Entertainment LLC filed several complaints against artists who have been trying to reclaim their copyrights on multiple Avengers characters. Marvel argues that their termination notices are invalid because their works fall under the work-made-for-hire rule (a copyright is automatically owned by an employer if a work is created by an employee paid to create this work). In another termination lawsuit, screenwriter Victor Miller successfully argued in the Second Circuit that his script for the classic horror film, Friday the 13th, was not a work made for hire. This is an area of unsettled law, and the courts in these early lawsuits are likely to set important precedents.

THE SNIP: Multiple cases involving copyright termination rights are likely to set precedent in this new area of copyright law.

Learn More:

• READ: “What’s Really Going on In Marvel’s Copyright Termination Lawsuits,” Aaron Moss, Copyright Lately (September 26, 2021).

• READ: “’Friday the 13th’ Copyright Case is Rare Termination Rights Guide,” Kyle Jahner, Bloomberg Law (October 7, 2021).

• READ: “Copyright Act’s Termination Right is Having a Moment,” Bill Donahue, Law360 (February 5, 2021).