No images? Click here 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. Was this email forwarded to you by a friend? Sign up for The SNIP. THE LATEST FROM HUDSON Senior Fellow Adam Mossoff and Others Submit Comment on Standard Essential Patents to the European Commission On May 29, 2022, 25 law professors, economists, and former U.S. government officials filed a comment responding to the European Commission's “call for evidence” on the licensing and litigation of standard essential patents (SEPs). They emphasize the overwhelming economic evidence confirming that SEP-protected inventions have driven unprecedented innovation and commercialization of wireless technologies. They also review the growing body of case law in Europe in which SEP owners have received injunctions against device manufacturers infringing their patents and engaging in “holdout” tactics. Furthermore, their comment addresses other court decisions that have protected the rights of SEP owners in their licensing practices and in the damages they may receive for infringement. The mobile revolution will continue, the authors conclude, as long as courts continue to enforce intellectual property rights and do not impede the licensing and other contracts predicated on those rights. The SNIP: In response to the European Commission’s call for evidence, U.S. intellectual property experts comment on SEP-driven innovation and commercialization in the mobile revolution. Learn More:
Hudson Publishes White Paper on Technology Standards and National Security In May 2022, Professor Kristen Osenga published a white paper that explains the fundamental policy connection between patent law and national security policy. She observes that while many people appreciate the positive impact that technological standards have on their lives—through things such as autonomous driving cars, the internet of things (IoT), and biofuels—they often fail to recognize that these standardized technologies constitute key components of U.S. national security. The United States relies on technology standards in securing its national security interests in a wide array of fields, including military defense, infrastructure, healthcare, and food, among others. Prof. Osenga recommends that the U.S. retain or adopt policies that encourage U.S. companies to compete and lead in the key technologies that the U.S. innovation economy and military use. At a minimum, restoring reliable and effective patent rights to U.S. innovators is essential to achieving this goal. The SNIP: A Hudson white paper details how reliable and effective patent rights are essential to U.S. technological leadership and national security. Learn More:
CASE DEVELOPMENTS Copyright Claims Board Commenced Operations on June 16 The Copyright Claims Board (CCB) began accepting claims on June 16, 2022. The CCB, created under the 2020 Copyright Alternative in Small-Claims Enforcement Act, is an alternate forum to the federal courts where parties can bring copyright claims with a monetary value of $30,000 or less. In early June, the Copyright Office issued its final rules on the procedures of the CCB, such as the voluntary withdrawal process, the limits on the number of proceedings initiated by a claimant, the discovery process, submission of evidence, the process of the hearings, and review of CCB decisions. The SNIP: The new Copyright Claims Board commenced operations on June 16, 2022. Learn More:
FTC Chair Khan and Commissioner Slaughter Side with Big Tech on Standard Essential Patents On May 17, 2022, Federal Trade Commission (FTC) Chair Lina Khan and Commissioner Rebecca Slaughter submitted a public interest statement to the U.S. International Trade Commission (ITC) in one of its cases involving the alleged infringement of Koninklijke Philips N.V.’s standard-essential patents (SEPs). The FTC’s statement argues that the ITC should refrain from issuing exclusion orders for infringement of SEPs when a U.S. district court can award monetary damages. Khan and Slaughter advanced broad arguments about SEP owners’ “holdup” in wireless technologies that Big Tech first asserted over a decade ago. Neither follow-on empirical studies nor the continued economic growth in the wireless sector have confirmed these claims, as detailed in the submission to the EU that the above SNIP entry summarizes. The SNIP: FTC Chair Khan and Commissioner Slaughter submitted a public interest statement arguing against ITC exclusion orders for SEPs. Learn More:
Solicitor General Urges Supreme Court to Grant Certiorari in American Axle v. Neapco On May 24, 2022, the solicitor general filed a long-delayed brief in response to a call for the views of the solicitor general (CVSG) by the Supreme Court in its review of the cert petition in American Axle & Manufacturing v. Neapco Holdings. In American Axle, the patent owner has requested that the Court revisit its Alice-Mayo test for determining the patent eligibility of inventions under § 101 of the Patent Act. The district court and appeals court applied the Alice-Mayo test in this case and invalidated a patent on a new method for manufacturing automobile axles, concluding that it claimed an unpatentable abstract idea and not a real-world invention. The courts have invalidated thousands of patents in the biotech and high-tech sectors in the past decade under the Alice-Mayo test, and the Supreme Court has already denied over 50 cert petitions asking it to revisit this test. The SNIP: The solicitor general recommends the Supreme Court grant certiorari in American Axle & Manufacturing v. Neapco Holdings to bring clarity in determining patent eligibility criteria. Learn More:
LEGISLATION & POLICY DEVELOPMENTS The DOJ Withdraws Its Draft Policy Statement on Standard Essential Patents without Adopting a New OneOn June 8, 2022, the Antitrust Division of the U.S. Department of Justice (DOJ) withdrew its 2019 policy statement on SEPs, but it did not adopt a new one. Public criticisms of the draft, including comments submitted by Hudson scholars, might have prompted the decision against adopting a new statement. Earlier in April, an official with the DOJ reported at a conference in Florence, Italy, that the DOJ received 125 substantive comments to the draft, of which 45% disagreed that the draft policy statement should be adopted as is, whereas 34% agreed. In addition, 42% of the comments opposed the draft policy statement’s position on the availability of injunctions, whereas 33% of the comments supported it. With this withdrawal, the agencies end the era of policy statements on SEPs, a move that commentators across the board welcomed. The SNIP: The DOJ withdraws its 2019 draft policy statement on SEPs, but refuses to adopt one, ending the area of policy statements on SEPs. Learn More:
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