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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 Submits Comments on the Public Consultation on Standard Essential Patents
On December 6, 2021, the Department of Justice, the U.S. Patent and Trademark Office, and the National Institute of Standards and Technology issued a request for comments on a new draft policy statement concerning licensing negotiations and remedies for standard essential patents. Six Hudson Senior Fellows submitted a comment that addressed the negative effects that the draft policy statement’s proposals would have on innovators, U.S. consumers, and U.S. global technology leadership. They emphasized that U.S. agencies should only adopt policies that provide for reliable and effective patent rights, facilitating efficient licensing that ensures recouping research and development expenditures and funding the creation of new inventions that drive the U.S. innovation economy.
The SNIP: Hudson scholars’ comment identifies legal and policy concerns with the new draft policy statement on standard essential patents.
Learn More:
- READ: “Public Comments Welcome on Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to F/RAND Commitments,” Department of Justice (December 6, 2021).
- READ: “Response to the Request for Public Comments on the Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments,” Adam Mossoff et al. (February 4, 2022).
Hudson Institute Exposes Unreliable Data in the Drug Patent Debate
Adam Mossoff, Chair of the Forum for Intellectual Property and Senior Fellow at the Hudson Institute, published a policy memo identifying unreliable and unverified data used in policy discussions concerning drug patents and drug prices.
The policy memo identifies massive discrepancies between patent numbers covering drugs published by the Initiative for Medicines, Access & Knowledge (I-MAK) and the patent numbers on the same drugs listed in official, publicly accessible sources, such as the Food and Drug Administration’s “Orange Book” or in court opinions. After the memo was published, Senator Thom Tillis sent letters to the FDA, the U.S. Patent and Trademark Office, and to I-MAK expressing concern about the unreliable data influencing policymaking and requesting more information.
The SNIP: Hudson Institute policy memo identifies unreliable and unverified data used by prominent advocacy organization to influence policymaking on drug patents and drug prices.
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CASE DEVELOPMENTS
Sonos Wins Major Patent Infringement Case Against Google
On January 6, 2022, the U.S. International Trade Commission (ITC) affirmed an earlier ruling that Google had infringed five of Sonos’ patents covering its innovative wireless smart speakers. As a result, the ITC may ban Google from importing and selling its devices and consumer products containing the infringing technology. Since the ITC cannot issue damages, Sonos has a chance to recoup them in a lawsuit it filed in court against Google in September 2020. Google also filed a countersuit against Sonos in June 2020. Though the ITC decision is a victory for Sonos, it is not the end of its legal dispute with Google, which promises to continue fighting against Sonos’ efforts to defend its intellectual property rights against Google’s predatory infringement of its patented technologies.
The SNIP: ITC rules that Google infringed five of Sonos’ patents covering wireless smart speakers, potentially banning Google from importing its infringing products into the U.S.
Learn More:
Federal Circuit Holds Oral Argument in SAS Institute v. World Programming
On January 13, 2022, the Federal Circuit heard oral arguments in SAS Institute Inc. v. World Programming Ltd, a case that concerns the copyrightability of computer software and the presumption of validity for registered copyrighted works. In October 2020, the district court dismissed SAS Institute’s infringement lawsuit after the court placed the burden on SAS to show that the nonliteral elements of its statistical analytics program were protectable under the copyright laws. In its appeal, SAS argues that the district court improperly shifted the burden of copyrightability and that a jury should have decided this question. At oral argument, the Federal Circuit appeared somewhat skeptical of SAS Institute’s position, suggesting that SAS Institute did not identify the specific facts that should have been decided by a jury. The development in this case could be significant as it might offer some guidance into assessing difficult questions with the protectability of software.
The SNIP: Federal Circuit appears doubtful of SAS Institute’s arguments for a jury decision in the question of copyrightability.
READ: “Fed. Circ. Panel Iffy on Reviving SAS Software Copyright Suit,” Britain Eakin, Law360 (January 13, 2022).
READ: “SAS Pressed by Fed. Cir. in Bid to Revive Software Copyright Case,” Kyle Jahner, Bloomberg Law (January 13, 2022).
READ: “Federal Circuit Will Soon Hear Case that Threatens the Statutory Presumption Afforded Copyright Registration,” Steven Tepp, IP Watchdog (January 9, 2022).
LEGISLATION & POLICY DEVELOPMENTS
Vote on Kathi Vidal’s Nomination to Head U.S. Patent and Trademark Office
On January 13, 2022, the Senate Judiciary Committee approved President Biden’s nominee for Director of the U.S. Patent and Trademark Office, Kathi Vidal. It was a 17-5 vote. She is now awaiting a vote from the full Senate. Her position as a partner at the Silicon Valley office of Winston & Strawn has raised some criticism about her ties to Big Tech. However, she generally has wide bipartisan support. Senator Thom Tillis, for example, supports her appointment, stating that she “will be the exact type of visionary leader we need . . . [as] she’s willing to listen to all stakeholders, big and small.”
The SNIP: On January 13, 2022, the Senate Judiciary Committee approved nominee for Director of the USPTO director, Kathi Vidal, in a 17-5 vote.
Learn More:
READ: “Senate Judiciary Confirms PTO Nominee Kathi Vidal by Wide Margin,” National Law Journal (January 13, 2022).
READ: “Tillis to Support Kathi Vidal’s Nomination for Director of the U.S. Patent and Trademark Office,” Press Release for Senator Tillis (January 5, 2022).
READ: “Senate Panel Advances Vidal’s Nominations to Head USPTO,” Ryan Davis, Law360 (January 13, 2022).
