• Taiwan IP Office Moves Beyond Politics To Forge Links With Other IP Offices, Enforce IP Rights

    TAIPEI, Taiwan — The building is impressive. Taiwan’s intellectual property office, located in the Dan-an district of Taipei, deals with patents, trademarks, designs, and utility models. Not being a recognised member of the United Nations, Taiwan cannot access the World Intellectual Property Organization treaties, in particular the Patent Cooperation Treaty. However, Taiwan is dedicated to enforcing IP rights, and entertains agreements with several IP offices in the world, including China, which is Taiwan’s major trading partner.

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  • Chinese National Convicted of Conspiracy to Steal Trade Secrets in Kansas

    Recently, Newsweek has published an article titled, “A Chinese Scientist Stole American Rice and will Spend a Decade in Prison,” by Max Kunter.  The article explains how Mr. Zhang worked for a biotechnology company, Ventria, around Manhattan, Kansas (the location of Kansas State University) and genetically modified seeds from that company were found in the baggage of Chinese research visitors from a Chinese crop research institute on their way back to China.  Mr. Zhang is Chinese national and a legal permanent resident. He has been convicted of conspiring to steal trade secrets.  He will serve 10 years in prison. 

    Interestingly, the article notes:

    FBI Director Christopher Wray has also warned about China. Asked during a Senate intelligence committee hearing in February about the counterintelligence risk from Chinese students in the U.S., Wray said, “The use of nontraditional collectors, especially in the academic setting, whether it’s professors, scientists, students we see in almost every field office that the FBI has around the country…. They’re exploiting the very open research and development environment that we have.”

    Here are a couple of observations.  First, there could be an argument that this activity is not sponsored by the government in China.  Mr. Zhang may be acting illegally, but on his own accord.  He may realize that this seed is very valuable and that by passing the seed on to co-conspirators he may be entitled to a piece of a new company started in China selling the same seed in other markets.  The people starting the new company may similarly be operating without government approval or sponsorship.  However, it is interesting that he passed the seeds on to a Chinese crop research institute.  I wonder who sponsors the work of the research institute.  Mr. Zhang was also defended by public defenders, but I imagine that if this was state sponsored the government of China is likely not going to pay for his defense—that would look bad.  Second, I am curious to learn more about data substantiating Mr. Wray’s comments about “every field office . . . around the country.” 

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  • Admitting to an Abstract Idea

    by Dennis Crouch Maxon v. Funai (Fed. Cir. 2018) (nonprecedential opinion) In a sweeping judgment,the N.D. Ill. district court dismissed Maxon’s infringement case — finding the claims of the plaintiff’s four asserted patents to be invalid for claiming ineligible subject matter under 35 U.S.C. 101.   On appeal, the Federal Circuit has affirmed. The patents here […]

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  • Statute v. Constitution as IP Limiting Doctrine

    In his forthcoming article, “Paths or Fences: Patents, Copyrights, and the Constitution,” Derek Bambauer (Arizona), notices (and provides some data to support) a discrepancy in how boundary and limiting issues are handled in patent and copyright. He notes that, for reasons he theorizes, big copyright issues are often “fenced in” by the Constitution – that is the constitution limits what can be protected. But patent issues are often resolved by statute, because the Constitution creates a “path” which Congress may follow. Thus, he notes, we have two types of IP emanating from the same source, but treated differently for unjustifiable reasons.

    The article is forthcoming in Iowa Law Review, and is posted on SSRN. The abstract is here:

    Congressional power over patents and copyrights flows from the same constitutional source, and the doctrines have similar missions. Yet the Supreme Court has approached these areas from distinctly different angles. With copyright, the Court readily employs constitutional analysis, building fences to constrain Congress. With patent, it emphasizes statutory interpretation, demarcating paths the legislature can follow, or deviate from (potentially at its constitutional peril). This Article uses empirical and quantitative analysis to show this divergence. It offers two potential explanations, one based on entitlement strength, the other grounded in public choice concerns. Next, the Article explores border cases where the Court could have used either fences or paths, demonstrating the effects of this pattern. It sets out criteria that the Court should employ in choosing between these approaches: countermajoritarian concerns, institutional competence, pragmatism, and avoidance theory. The Article argues that the key normative principle is that the Court should erect fences when cases impinge on intellectual property’s core constitutional concerns – information disclosure for patent and information generation for copyright. It concludes with two examples where the Court should alter its approach based on this principle.

    The article is an interesting theory piece that has some practical payoff.
    One sign (to me at least) that the article is well-reasoned is that Professor Bambauer addresses all of the several reasons and explanations for the differences I could think of as I read the abstract and introduction. Of course, I’m biased! If you read it and think of something he hasn’t addressed, I’m sure he’d like to hear about it.

    The paper then argues normatively for how cases should be decided: where the boundary issue has to do with a core issue of the IP doctrine, then Constitutional fence building should be applied. While the paper engages in some quality analysis, this makes sense at an intuitive level: if you are going to use the Constitution to limit the scope of protection at all (not unanimously accepted), well, then, you should do so when it counts, rather than picking and choosing when to give Congress discretion. The article provides a couple examples of how this would operate in practice.

    I suppose my one concern on a theoretical level is that the notion of “Constitutional fences” is awfully amorphous. The IP Clause is just a few words, and doesn’t mention anything about ideas, expression, functionality, design, supremacy, or anything else. As a result, much of what we say are “fences” are really just policy choices we would make that are different than those supported by the broadest reading of the statutes and the text of the IP Clause it’s self (hey, 120 years is a limited term, right?).

    Professor Bambauer, recognizes this (of course – see my point above about reasoning), and is quite explicit normatively. His first normative point is that we may prefer countermajoritarian oversight of Congress. But I wonder whether that proves to much: when are courts to know whether oversight is necessary or not? Professor Bambauer implies that the thumb should be on the scale of the core feature “information generativity” in copyright, for example. So should we be doing empirical studies of information generativity for every boundary case? In patentable subject matter, the internet boomed during a period of heavy patenting of overly broad internet patents. Sure, there are fewer lawsuits today, but is there more innovation? I think the jury is out. And what of natural rights? The IP Clause is pretty clear that exclusive rights are the way to promote the progress – so why should the default be to fence out exclusive rights? Sure, that might be a policy preference, but a clearly mandated constitutional one (as opposed to one delegated to Congress)? While I think that the normative case is made really well here, but I think it begins with priors about the underlying nature of patent, copyright, and the constitution.

    In all events, I found this an enjoyable, thought provoking read, and worth a look.

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