I had the honor of representing SIIA at the July 16-17, 2019 “International Conference on AI-Emerging Technologies and Intellectual Property – Connecting the Bits.”  Many thanks to the World Intellectual Property Organization (WIPO), the Israeli Patent Office, and the Israeli Innovation Authority.   My panel participation presentation on “AI and Regulation – The Broader Picture” can be found here.  During my remarks, I focused on trade agreement protections relevant to AI, protections for proprietary data, and explainability/auditability issues.  There were a few themes that struck me from the two days of conversations with colleagues.  First, participants did not contemplate omnibus AI legislation or regulation.  Second, intellectual property remains a key tool in incentivizing AI innovation.  Third, there are a number of interesting conversations about AI and patent law, some of which touch directly on SIIA a ...

The Internet of Things (IOT) is another ongoing transformational technology that is changing and will continue to change our lives.  Gartner calculates that there were roughly 8.4 billion IOT connected devices in 2017 and there will be about 20.4 billion in 2020.   This SIIA White Paper describes the benefits for consumers, energy, agriculture, manufacturing, and healthcare.    The United States, among other countries (including China) is taking advantage of the opportunities presented by IOT.  The important thing in this context is to maintain and, if possible, expand the American IOT adoption rate.  Why is this important?  First, it matters because the United States has a comparative advantage over China in this space.  Second, manufacturing, a sector prioritized by the Trump Administration, will be one of the biggest beneficiaries of IOT.  Third, consumers benefit economically from IOT, but the technology is also a matter of conve ...

When the Equifax data breach occurred, 240,000 Vermonters received notice that their information had been compromised.  Equifax’s initial response—which among other things required people to waive their legal rights—did not inspire great confidence in the public.  And legislators were justifiably angry. But people make mistakes when they’re angry, and when the First Amendment is involved, those mistakes can be expensive.  Not so long ago, the legislature was convinced that it could regulate information in the same way as “beef jerky.”  Both liberal and conservative justices of the Supreme Court told them they were wrong.  As a result, Vermont spent $4 million and was forced to pay approximately $2.22 million in attorneys’ fees.   History is about to repeat itself. The Vermont Senate is now considering legislation that requires provocatively named “data brokers” to register with the state and co ...

For years, the Securities and Exchange Commission (SEC)  has been seeking an administrative agency exception that would enable it to use a subpoena to access email content stored remotely by third parties.  But under current legal precedent, per a 2010 Sixth Circuit decision, United States v. Warshak, it has been precedent that this material should only be accessible with a search warrant. The SEC continues to seek expanded authority, and they question the application of this warrant requirement to civil agencies.  In February, they issued a subpoena to Yahoo to access a user’s email, where the account was owned by a defendant in a securities fraud case.  Yahoo has rightly challenged this action, and the case, Securities and Exchange Commission v. North Star Finance LLC, represents a landmark dispute regarding the government efforts to obtain email content in a civil case with just a subpoena to an email service provider. Unlike a warrant based upon pro ...

In their landmark decision on May 22nd, the Supreme Court decided 8-0 in favor of TC Heartland over Kraft Foods Group, changing the dynamics of patent litigation across the country. In the case itself, Kraft sued TC Heartland, claiming that TC Heartland had infringed on Kraft’s patent for the low-calorie water sweetener, MiO.  The Court held that the defendant could only be sued in the state in which it was incorporated.  Earlier this week, the House Judiciary Committee’s Subcommittee on Courts and Intellectual Property held a hearing on the impact of the TC Heartland decision, and heard testimony that although the TC Heartland decision is helpful, it is not a panacea for litigation abuse.

Earlier this week, SIIA filed a brief in the U.S. Supreme Court on patent venue, urging it to reverse the Federal Circuit’s interpretation of the existing patent venue statute, 28 U.S.C. 1400(b).  Although the argument is a technical one, the resolution of this case has important implications for the technology industry.  The misinterpretation of that statute has concentrated patent litigation in a single district that has encouraged the growth of the patent assertion business model.

Yesterday, the Supreme Court unanimously reversed a decision of the Federal Circuit in the long-running iPhone litigation between Apple and Samsung and we, the Software & Information Industry Association (SIIA), welcomed it.  The Federal Circuit had held that when a design patent is infringed, the plaintiff is entitled to the total profits from the infringing product—even where the infringing product has many components.  The lower court had permitted Apple to recover all of the profits from the sale of infringing Samsung Galaxy phones, despite the fact that the allegedly infringed elements were minor ornamental components of the overall product. 

Yesterday, the Supreme Court heard arguments in the long-running Samsung v. Apple design patent litigation and took special note of the technology industry’s concerns.  The Court was reviewing a decision from the United States Court of Appeals for the Federal Circuit holding that someone found to infringe a design patent could be liable for all of the profits made from the infringing product, even if the reason that consumers bought the product was in substantial part because of its functionality.   (We wrote previously about that here. The reason for the lower court’s holding stemmed from the language of 35 U.S.C. 279, which says, in relevant part (emphasis added):

For the past several years, SIIA has been trying to persuade Congress to change patent law to make it more difficult for non-practicing entities (e.g., trolls) to shake down technology businesses.   What we don’t need is additional court decisions that make matters worse.   To that end, SIIA, along with several leading tech companies, filed an amicus brief in the Supreme Court urging it to reverse the Federal Circuit’s decision in Apple v. Samsung.  (For those of you that are curious, the Federal Circuit decision is here). Apple and Samsung have been battling in court for the past several years over design patents, which cover only non-functional aesthetic elements of a particular product.   A person who uses that design without an authorization is an infringer, in the same way that someone who used Apple’s “slide to unlock” feature without a license would owe them a royalty.   Where the two kinds of patents ...