• Private Rights and the Sanctity of an Independent Judiciary

    There appears to be a consistent pattern of public rights cases from Murray’s Lessee to Stern. Congress may establish a public right, separate from actions that affect the federal government, that involves an action related to protection of the public, such as health or welfare, and may establish an executive tribunal in which to adjudicate these rights. An Article I tribunal may adjudicate these public rights, primarily by advancing a fact-finding role, but within the constraints of consent,…

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  • Fortune’s misguided screed on patent trolls misrepresents patent owner Blackbird Technologies

    Fortune tech writer Jeff John Roberts, who penned this particular article, regurgitates Cloudflare’s claims that Blackbird “may be engaging in illegal fee-splitting arrangements with patent owners” simply because it is run by people who have experience as patent litigators. It’s true that Blackbird is staffed with many lawyers coming from leading firms in patent law like Fish & Richardson and Kirkland & Ellis, but Blackbird is asserting the patents on their own behalf. Although the…

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  • Facebook announces three firms will integrate with Rights Manager for automated protection of copyrighted content

    Early this October, Facebook announced a partnership with three entities that will be integrated with the Rights Manager suite to offer rights management as a service on the Facebook platform: Friend MTS; MarkMonitor; and ZEFR. These entities will reportedly enable more automation of Rights Manager services for content creators who are already enrolled in Facebook’s content protection program. The integration of Rights Manager with these new services is expected to take place over the coming…

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  • NOT (その他)

    NOT (その他)

    –>and not

    $$ Accordingly, the output from the decorrelator may include high frequency information not required. / したがって、非相関化器からの出力は、不必要な高周波数情報を含む場合がある。(USP6754433): sth not

    $$ Those polygons not marked by the volumes are now eligible for processing using the delta method. (USP6549200): sth not

    $$ There is, however, an exposed area of the active electrode 14 not covered by vapour bubbles, and this further stresses the interface, producing more vapour bubbles and thus even higher power density. (USP6780180): sht not

    $$ A selective etch is then used to remove p-type material not covered by the resist and at least part of the n-type material of the ridges 20. / 次いで、選択的エッチングによりレジストに覆われていないp型材料と、畝20のn型材料の少なくとも一部を取り除く。(USP7598149): sth not

    $$ In this manner the display may be protected when not in use. / この方式では、不使用時にディスプレイを保護することができる。(USP6812954)

    $$ Packets not having the RSVP protocols are directed to an output 74 where they are fed to the gateway GPRS support node 51 for onward transmission in the conventional GPRS manner. / RSVPプロトコルをもたないパケットは、通常のGPRS方法の送信に対してゲートウエイGPRS支援ノード51へ供給されるとき、出力74へ方向付けられる。(USP6584098)

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  • Are you Pat-Informed?  A new joint initiative of the research-based biopharmaceutical industry and WIPO wants you to be.

    Guest post by Corey Salsberg, Vice President, Global Head IP Affairs, Novartis The patent system depends on information to achieve its goal of promoting progress.  Published information defines the prior art.  Patents must disclose sufficient information to describe an invention and enable others to practice it.  And applications containing this information are published after 18 […]

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  • PatentlyO Bits and Bytes by Anthony McCain

    Steve Brachmann: PTAB Due Process Violations Raised In Brief To Federal Circuit Joe Mullin: New Patent-Holder Grabs Nokia Patents, Sues Over Apple iPhones Michael Hinrichsen & Anthony Sabatelli: Patent Exhaustion And Pharmaceuticals Jo Dale Carothers: Federal Circuit Clarifies Venue Requirements For Patent Cases Florian Mueller: DoJ Backs Apple, Says Supreme Court Should Deny Samsung’s Most […]

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  • Some New Papers, Posts on SEPs, FRAND in Asia

    1.  Jorge Contreras has posted a paper on ssrn titled National Disparities and Standards-Essential Patents:  Considerations for India, which is a draft of a chapter in a forthcoming edited volume titled Complications and Quandaries in the ICT Sector:  Standard Essential Patents and Competition Issues (Ashish Bharadwaj, Vishwas Deviah & Indraneth Gupta eds., Spinger, forthcoming 2017).  Here is a link to the paper, and here is the abstract:
    Patents on standardized technologies are being issued with increasing frequency, and the majority of these patents are held by large multinational firms based in developed economies. As a result, firms from less-developed economies with sparse patent holdings are disadvantaged in both domestic and foreign markets. While protectionist governmental policies can address these disparities, such measures are potentially contrary to international treaty obligations and generally unsuccessful in the long term. An alternative approach involves greater participation in international SSOs by firms from less-developed economies. This increased participation is likely to benefit such firms both in terms of technology development, strengthening of patent positions, and influence over SSO policies. To facilitate increased participation, both financial and institutional support will be required from local governments, NGOs, multinational organizations and SSOs themselves. To the extent that participation in international SSOs by firms in developing economies such as India can be increased, it could have a meaningful impact on domestic innovation, job creation, technical capability and manufacturing output.
    2.  Ankita Tyago and Sheetal Chopra have posted a paper on ssrn titled Standard Essential Patents (SEP’s)–Issues & Challenges in Developing Economies, 22 J. Intell. Prop. Rts. 121 (2017).  Here is a link, and here is the abstract:
    Intellectual property rights (IPRs) in standards have proven to be an intensively debated issue nowadays. Although standards are meant to offer ‘access’ to technology and patents grant the possibility to ‘exclude’ others (exclusivity rights), both aim to promote innovation. The “return on investment” (ROI) from the patented technology selected to become part of a standard is the motor that fuels the development and implementation of standards. When aiming to solve highly complex technology problems the effort of many companies in sharing the technology resulting from large R&D investments is necessary. It is not surprising that, before sharing with others, such technical solutions are protected by patents. Thus, in the information communication technology (ICT) area the phenomenon of patents in standards is the general rule. Indeed, connecting millions of devices with each other (interoperability) and making them work properly (high performance) can only be achieved when the best technologies out of thousands of contributed technical solutions are selected. Considering some of the most celebrated Government of India’s initiatives such as Internet of Things, Start Up India, Make in India, Digital India etc. calls for an effective IPR regime that incentivizes development of standardized technologies and encourages indigenous local manufacturing of innovative standardized devices. This will go a long way in reducing India’s net import reliance, enhancing value addition, creating IP, generating employment, increasing domestic patent footprint, reducing cash outflow due to Bill of Materials (BOM), etc.

    With this view, the present paper analyses the concept of Standard Essential Patents (SEPs) and related issues to mobile technology that are deliberated at various forums. It summarizes some important aspects that arise when dealing with SEPs. The linkage of standards and patents has also been studied. The paper examines the patent landscape and offers analysis of existing and anticipated patent holdings. It also outlines the evolution of key technologies and provides comparative analysis of key patents. The paper brings light to some notable circumstances likely to influence the mobile patent landscape for the next several years and gives some recommendations for facilitating India’s growth story in creation, protection, and wider adoption of technology.

    3.  Hao Yuan has posted a paper titled SEP Holder’s Right to Injunction Shall Not Be Lightly DeprivedHere is a link to the paper, and here is the abstract:
    The 2017 Beijing High Court Patent Infringement Guidelines’ rule of “no injunction as a principle for SEP holders” has been premised on two “it” theories, i.e. the patent hold-up and royalty stacking conjectures, which still need to be judged by their predictive power in the real world. For the past two decades these conjectures did an unsatisfying job in this respect – despite grand appearance at first sight, empirical support of a stagnant market for SEP-intensive industries is still in serious lacking. As direct variants of classical transaction cost economics hold-up theory and the Cournot Complement problem, the conjectures also seem to be inconsistent with the established theories. From a historical and comparative law’s perspective, occasional patent hold-up is by no means a new phenomenon limited to the standard setting. It is entirely possible that the patent system is imperfect, with frictions or loopholes happening from time to time. But there is a significant distinction between acknowledging occasional overcharging behavior (frictions or loopholes), and concluding that a systematic market failure has been resulted, or will be resulted absent taking aggressive “reforms” departed from the classical rule. For the former, comparative law teaches us that patent law has been functioning pretty well in the past hundreds of years, and absent the latter, aggressive departures from a fundamental notion of a well – working patent system, for example in the form of “no injunction by principle” rule, is simply wrong. Market mechanism with carefully and finely tuned rules has largely proved itself to be capable in dealing with occasional hold-ups, and without substantial empirical evidence to the contrary, policy makers in China should not be frightened into making overzealous changes. 

    4.  On September 29, the Japan Patent Office published its “Invitation to Contribute to Guidelines for Licensing Negotiations Involving Standard-Essential Patents,” available here.  Some recent blog posts discuss a proposal, floated this summer but not mentioned in the above document, that would have submitted disputes over FRAND-committed SEPs to mandatory ADR.  See Hirotaka Nonaka, Japan Considers Introducing a New ADR System with Compulsory License for SEPs, Trust in IP Blog, Aug. 12, 2017; Jacob Schindler, Patent Owners Sound Alarm over Proposed “Compulsory Licensing for SEPs” in Japan, IAM Blog, July 27, 2017; and (most recently) Jacob Schindler, Japanese Government Will Issue SEP Negotiation Guidelines, but Controversial ADR Proposal on Hold for Now, IAM Blog, Oct. 3, 2017.     

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