Google needs to take a consistent position on the International Trade Commission’s role in IP rights enforcement, said Free State Foundation President Randolph May in a blog post Tuesday. Google had said in 2014 comments on the Align Technology-ClearCorrect patent case that ITC authority to prevent infringing imports doesn’t extend beyond physical goods. The ITC voted 5-1 that digital goods like the digital scans of dental appliances at issue in ClearCorrect’s case constitute “articles” that are within the commission’s purview under Section 337 of the 1930 Tariff Act. Align’s appeal of the ITC ruling is set for oral arguments Aug. 4 at the U.S. Court of Appeals for the Federal Circuit. Google and allies claimed during the 2011-2012 debate over the Stop Online Piracy Act (SOPA) that online infringement “should be treated as an international trade issue,” May said. “For well over 80 years, the independent International Trade Commission (ITC) has been the venue by which U.S. rightsholders have obtained relief from unfair imports, such as those that violate intellectual property rights. Under Section 337 of the Tariff Act of 1930 -- which governs how the ITC investigates rightsholders' request for relief -- the agency already employs a transparent process that gives parties to the investigation, and third party interests, a chance to be heard,” Google and other SOPA opponents said in a fact sheet supporting the alternative Online Protection and Enforcement of Digital Trade Act. “In light of these statements touting the efficacy of international trade remedies, and the fact that SOPA and the OPEN Act obviously were all about protecting digital data, not physical goods, it's hard to believe that Google is now arguing that the imported ‘articles’ over which the ITC possesses authority do not include digital content,” May said. Google didn’t immediately comment.
Real estate image provider VHT filed a lawsuit against online real estate database company Zillow Wednesday in U.S. District Court in Seattle, alleging that Zillow violated VHT’s copyright on more than 300 images by using them on the Zillow Digs home improvement website. “Zillow is also abundantly aware that the photographs transmitted by listing agents and brokers to the Zillow Listing Site are licensed by VHT only for purposes of marketing the properties for sale,” VHT said in the lawsuit. “Nonetheless, when Zillow launched its Digs Site, it populated it with these photographs -- not for purpose of marketing the properties -- but rather for the purpose of selling advertising for design elements depicted in these photographs.” Zillow disputed VHT’s claims, saying in a statement that it “has abided by the terms of the licenses agreed to by the parties who provided these photos.” Zillow declined to comment further but said it “will vigorously fight the allegations and ... [is] confident in our position.”
The Software Alliance (BSA) submitted a letter to House Speaker John Boehner, R-Ohio, and House Minority Leader Nancy Pelosi, D-Calif., Thursday calling for "certain changes and clarifications to be made" to the Innovation Act (HR-9) as the legislation is prepared for House consideration. In the letter, the BSA said HR-9 "represents a solid framework for much-needed reform to address the rampant abuses occurring in patent litigation," but suggests changes be made to strengthen pleading requirements, and to a provision concerning U.S. Patent and Trademark Office standards for interpretation of post-grant reviews. "The pleadings provision needs to be strengthened to require patentees to articulate their allegations of infringement for every claim being asserted," said the BSA in the letter. It also urged deleting a provision from the bill to "alter the current USPTO practice of using the broadest reasonable interpretation standard during all post-grant review challenges." CEA has said that HR-9 is expected to go to a floor vote in the House during the week of July 20 (see 1507080040).
The world sees the U.S. as a leader in protecting and enforcing intellectual property rights, but as countries across the globe "seek to catch up," America "cannot afford to stand still," Michelle Lee, U.S. Patent and Trademark Office director, said Monday in a speech at a Center for Strategic and International Studies event. The focus of Lee's speech was primarily on the need for the U.S. patent system to evolve and the changes she said are necessary for it to improve. Lee said she met with Chinese leaders in the field of intellectual property on a recent trip and was told China is seeking to transition its economy from relying on manufacturing the inventions of people from other countries to thriving off inventions of its own. To do so, China "recognizes the need for a patent system" more like that of the U.S., she said. Because of the increased threat of competition from other countries, Lee said, it's important that the U.S. strives to become "even better at incentivizing and promoting innovation and investment." Current problems with the U.S. system stem partly from the rise of the practice of monetizing a patent bought from another company "without contributing anything inventive or without making or providing any service," and in increased patent infringement claims made merely to coerce defense settlements without regard to the merits of a claim, she said. Such problems "are not just bad for small businesses and startups," they're bad for "inventors, consumers, jobs and the American economy," she said. And "worst of all," such problems "reduce the public's faith in our patent system," Lee said. Her idea is to change the system in a way that preserves balance between maintaining strong patent protections that are necessary for innovation, and ensuring a more efficient and streamlined way of handling disputes, she said. Achieving that balance is "a responsibility shared by all three branches of government," but in order to have timely changes "targeted and balanced legislation is needed," she said. Reforms should reduce the incentive to engage in abusive patent litigation tactics without undermining the strengths of "our world-class patent system," she said. "Reform is not a crisis of faith about our patent system," Lee said, but "a way of keeping faith with its goals of promoting innovation and technological progress."
An IEEE patent policy could stifle competition and encourage collusion, said Criterion Economics Chairman Gregory Sidak. The policy, which addresses how businesses that voluntarily comply with fair, reasonable and nondiscriminatory (FRAND) licensing terms may evaluate patent royalty rates, was established in February by IEEE in what it said will protect against patent holdup and royalty stacking. Businesses that are a part of standard setting-organizations agree to abide by FRAND practices when it comes to the licensing of their patented technology. IEEE's policy said it puts safeguards in place so companies with patents determined to be an industry standard for a certain technology can't raise the licensing price for other entities too high, or multiple companies with essential patents can't stack up royalty demands. "There is very little evidence" to support the theories, Sidak said. During a Hudson Institute event Wednesday, Sidak said he doesn't see any proof that products aren't being brought to market because royalty stacks are too high. He also said that in a court case, it is hard for people to provide data that stacking and holdups are happening. "When you actually litigate one of these cases," said Sidak, "there will be a lot of lip service paid to one of these theoretical principles, but when you actually have to compute a royalty, they're not feasible because the data typically isn't in existence." At IEEE's request, the Justice Department's Antitrust Division issued a business review letter analyzing antitrust implications. "Harm is unlikely to occur" to competition by "anticompetitively reducing royalties" and "diminishing incentives to innovate" as a result of the new policy, said the DOJ. Sidak said the division has never written a business review letter about issues related to standard essential patents (SEPs) and failed to address whether royalty stacking and patent holdup occur. After the IEEE submitted its request for a business review letter, Sidak wrote his own letter to the division, stating that, contrary to what the IEEE suggests, the amendments to its policy threaten competition and consumer welfare. Sidak wrote that he has consulted for companies concerning SEPs and has advised IEEE members; he said the remarks in his letter to the DOJ were only on his behalf. "Although these clients have urged me to write to you, they have also asked that I express strictly my own views," he wrote. DOJ and IEEE had no comment Thursday.
HDMI Licensing “wrongfully” demands $905,000-plus in back royalties and interest from Advanced Digital Broadcast, a Swiss-based supplier of HD set-top boxes, residential gateway devices and other products to pay-TV operators, ADB alleged in a breach of contract complaint filed Tuesday in U.S. District Court in San Jose. ADB seeks a declaratory ruling that it doesn’t owe the money. HDMI Licensing threatened to cancel ADB’s license agreement at the close of business Tuesday and alert customs authorities globally to seize ADB shipments as “unauthorized” goods, the complaint said. The complaint doesn’t seek a preliminary injunction, only a “declaration” that HDMI Licensing “is precluded” from notifying customs that ADB goods “are unauthorized and subject to seizure because they are not.” Neither side commented Wednesday. Under its November 2005 HDMI license agreement, ADB dutifully paid the 4 cents per unit royalty it owed for every licensed “end-user cable, component, connector, repeater, source or sink” it shipped between January 2010 and December 2012, the complaint said. An independent HDMI Licensing auditor found in late 2014 -- incorrectly, ADB alleged -- that ADB failed to “reasonably incorporate” the HDMI trademarks into the product documentation materials that accompanied those shipments, the complaint said. That failure gives HDMI Licensing the authority to charge an additional 10 cents per unit royalty, and it’s that differential royalty that ADB said it doesn’t owe. "Solely in an effort to resolve the dispute," ADB "changed the way it reasonably incorporates the HDMI alleged trademark into its related materials,” the complaint said. “ADB licensed products implement any and all changes in marking” that HDMI Licensing suggested, yet the licensor won't relent, it said.
The U.S. Court of Appeals for the D.C. Circuit upheld the Copyright Royalty Board’s (CRB) 2013 ruling that the Independent Producers Group (IPG) didn’t have a claim on the 2000-2003 sports programming and program suppliers royalties awarded to the Fédération Internationale de Football Association (FIFA), MPAA and the U.S. Olympic Committee. The CRB had said IPG “had not established its authority to represent” either FIFA or the U.S. Olympic Committee, the court said Tuesday. IPG appealed the CRB ruling as “arbitrary and capricious.” The D.C. Circuit said it agreed with the CRB’s analysis, saying “no basis exists for overturning the Board’s reasoned decision to reject IPG’s sports programming claims on behalf of FIFA and the U.S. Olympic Committee.” The D.C. Circuit also rejected IPG’s complaints against the CRB’s decision to award royalties in the program suppliers category to MPAA on behalf of other claimants, saying no claimant objected to MPAA’s authority to act on its behalf. MPAA also “supplied agreements with the claimants’ agents, and the Board had no reason to doubt the authenticity of those agreements,” the D.C. Circuit said.
Patent and Trademark Office Director Michelle Lee will keynote a Monday event at 1 p.m. on the state of U.S. patent law overhaul. The Center for Strategic and International Studies is hosting the event at its office at 1616 Rhode Island Ave. NW. After the keynote, Victoria Espinel, BSA/The Software Alliance CEO, and Michael Waring, University of Michigan executive director-federal relations, will discuss the topic.
The 9th U.S Circuit Court of Appeals issued a verdict in favor of Cox Communications Monday in a patent-infringement lawsuit brought by Cambrian Science Corp. In the original case, heard in U.S. District Court in the Central California, the court said Cox didn't infringe on U.S. Patent No. 6,775,312 which deals with components of a photonic integrated circuit used in fiber cables. Cambrian claimed Cox's Generations 1, 2 and 3 photonic integrated circuits violated the patent it currently holds. After the District Court judgment, Cambrian appealed the ruling only as it pertained to the Generation 2 circuit and the court's interpretation of the patent language. The dispute came down to the difference between an active waveguide coupler, which consists of material that can add gain to the optical signal, and a passive coupler, which is made of material that can't boost the signal. The 9th Circuit determined that Cox's Generation 2 device didn't satisfy the claim construction of an active coupler, and thus upheld the District Court's judgment of noninfringement. Cox declined to comment on the ruling and Cambrian couldn't be reached.
AMC Theatres will begin showing the Motion Picture Association of America’s “I Make Movies” videos at the movie theater chain’s more than 300 U.S. locations to promote legitimate content viewing, the association said Friday. MPAA CEO Chris Dodd has been encouraging theater owners to show the videos since their release earlier this year. “This latest effort will help inform those movie-goers that watching films in theaters and through legitimate online services is important for supporting the kind of creativity exhibited by the nearly 2 million American men and women that work in our industry,” Dodd said in a news release. Several independent theaters agreed to begin showing the MPAA videos, said the group.