• 整数・整数倍

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    整数・整数倍

    $$ In theory, `n` negative slope detections can be used where `n` is an integer from 2 to the maximum number of samples that can fit int…

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  • Does Administrative Patent Law Promote Innovation About Innovation?

    I am at Texas Law today for a symposium on The Intersection of Administrative & IP Law, and my panel was asked to address the question: Does Administrative Patent Law Promote Innovation? I focused my remarks on a specific aspect of this: Does Administrative Patent Law Promote Innovation About Innovation? I think the short answer, at least right now, is “no.”

    There is a lot we don’t know about the patent system. USPTO Regional Director Hope Shimabuku started her remarks today by saying that we know IP creates nearly 30 million jobs and adds $6.6 trillion to the U.S. economy each year, citing this USPTO report. But that’s not what the report says. It looks at jobs and value from “IP-intensive industries,” defined as ones with “IP-count to employment ratio is higher than the average for all industries considered.” As the report acknowledges, it is unable to determine how much of these firms’ performance is attributable to IP.

    And the real answer is: we don’t know. In an article I reviewed for Jotwell, economist Heidi Williams recently summarized: “we still have essentially no credible empirical evidence on the seemingly simple question of whether stronger patent rights—either longer patent terms or broader patent rights—encourage research investments.” And even on smaller questions, the existing evidence base is weak.

    As I explained in Patent Experimentalism, to make empirical progress we need some source of empirical variation. Economists often look for “natural experiments” with variation across time, across jurisdictions, or across similar technologies, and the closer that variation is to random, the easier it is to draw causal inferences. Of course, it’s even better to have variation that is actually random, which is why I have joined other scholars in arguing for more use of randomized policy experiments.

    The USPTO has a huge opportunity here to both improve the patent system and help address the key administrative law challenge of encouraging accurate and consistent decisions by a decentralized bureaucracy. There are many questions the agency could help answer using more randomization, as I discuss in Patent Experimentalism. During the panel today, I noted two potential areas: experimenting with the time spent examining a given patent (see this great forthcoming article by Michel Frakes and Melissa Wasserman) and with the possibility that examiner bias affects the gender gap in patenting (which fits within the agency’s recent mandate from Congress). I noted ways that each could be designed as opt-in progress to encourage buy-in from applicants and from examiners.

    But my main point was not that the USPTO should adopt one of these particular experiments—it was that the agency should study something in a way that allows us to draw rigorous inferences. Failing to do so seems like a tremendous missed opportunity.

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  • Other Barks & Bites for Friday, February 22

    This week in Other Barks & Bites: the Chinese and U.S. governments hash out intellectual property issues; a prominent New York City politician joins the effort to break the patent on Gilead’s Truvada; Qualcomm tells the ITC that Apple’s design around undermines the agency’s finding that an exclusion order shouldn’t be entered against infringing iPhones; the Fortnite copyright cases take a new turn; Babybel loses the trademark on its red wax cheese coating in the UK; Fisker & Paykel…

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  • Other Barks & Bites for Friday, February 22

    This week in Other Barks & Bites: the Chinese and U.S. governments hash out intellectual property issues; a prominent New York City politician joins the effort to break the patent on Gilead’s Truvada; Qualcomm tells the ITC that Apple’s design around undermines the agency’s finding that an exclusion order shouldn’t be entered against infringing iPhones; the Fortnite copyright cases take a new turn; Babybel loses the trademark on its red wax cheese coating in the UK; Fisker & Paykel…

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  • Burdon on Global FRAND Rate-Setting

    On the IPKat Blog yesterday, Rose Hughes published an analysis by Michael Burdon of the problems inherent to having courts in one country (say, the U.K.) determine the terms of a global FRAND license.  (This is also a topic that I recently talked about in Japan, and that Jorge Contreras and I plan to write something about in the near future.)  Anyone interested in the topic should take a look at Mr. Burdon’s thoughtful analysis.  In brief, he concedes that proceeding on a country-by-country basis is inefficient, but argues that the fault here lies primarily with SSOs, which to date have declined to establish an effective dispute resolution system or provide much guidance on how FRAND terms should be determined.  (I tend to agree; though I worry that some of DOJ Antitrust Chief Makan Delrahim’s recent statements about potential antitrust liability on the part of SSOs will only chill these organizations all the more from taking such steps.)  He also notes the arguable imbalance in having a country with relatively minimal contacts with the dispute set the terms of a global license  (“In ZTE’s case, UK sales were less than 0.07% of their global sales. It is difficult to think of any other field of intellectual property where the indirect consequence of infringement of a UK right has an effect, exponentially greater than the local direct effect of that right.”).
    Anyway, read the analysis in full.  But here are a few thoughts of my own in response to the post:
    1.  Citing paragraphs 124-27 of the Court of Appeal’s Unwired Planet decision, Mr. Burdon understands that case as standing for the proposition that, when both the SEP owner and the implementer make FRAND offers, the SEP owner’s offer effectively controls, because if the implementer refuses the offer it stands to be either (1) enjoined from selling infringing products in the U.K., or (2) coerced into taking a global license.  I hadn’t previously thought of the opinion in quite those terms; after all, in Unwired Planet the court itself ultimately determined what the terms of a global license would be, rather than simply accepting the terms proposed by Unwired Planet.  (Mr. Justice Birss also thought there could be only one single set of terms that would be FRAND, a matter on which the Court of Appeal disagreed.)  But this does present a thorny question:  if both offer and counteroffer are FRAND, is the appropriate response to have a court or other third party decide on the terms of a FRAND license (global or otherwise), or must the implementer accept the SEP owner’s terms?  The latter option doesn’t seem right.  On the other hand, if a FRAND license would be global in scope, as Mr. Justice Birss believed was the case on the facts of Unwired Planet itself, there is a certain logic to saying that the defendant has to accept a global license or risk being enjoined.  It just doesn’t follow that all of the terms must be those dictated by the SEP owner.   (It also doesn’t follow that a court in a country with relatively few contacts to the matter is the most appropriate forum to determine the terms of a FRAND license.  In both Unwired Planet and Conversant, the court rejected the defendant’s request to stay the U.K. litigation under the doctrine of forum non conveniens, but as I suggested in my Japan talks I wonder if this doctrine could be more fruitfully employed in future cases to address such situations.)
    2.  Whether a court in the U.S. would follow the lead of the English courts in setting a global FRAND rate over the objection of the implementer is still a bit unclear–though as Professor Contreras pointed out to me recently, last year the Eastern District of Texas rejected such a request in Optis v. Huawei, noting that under Federal Circuit precedent U.S. courts aren’t permitted to adjudicate claims involving foreign patents.  (The Federal Circuit so held in Voda v. Cordis, assertedly on the basis of the Paris Convention, though as Professor Graeme Dinwoodie has noted the Paris Convention almost certainly does not compel this result.)  Doctrinally, one further problem might be that, even if (in a given case) a FRAND license would be global, under eBay that still doesn’t necessarily lead to the conclusion that the defendant must be enjoined from practicing the patent in the U.S., even if it is unwilling to accept the court’s determination of a global FRAND license.   (At least I don’t think eBay would contemplate any such “automatic” rule.)  Further, I shudder to think how, if the matter were tried to a jury, a jury could be expected to set a global FRAND rate.  To say that that doesn’t seem practical is an understatement.

    3.  Mr. Burdon also cites a 2018 U.K. Supreme Court decision, Morris-Garner v One Step ([2018] UKSC 20, which (though a breach of contract decision) discusses, among other matters, the availability in some cases of “user damages” in lieu of an injunction (i.e., an ongoing royalty)–and thus could have considerable relevance in patent and other IP cases as well.  I confess that I wasn’t aware of this decision before, and will need to study it and report back.
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