DOJ’s Antitrust Division is withdrawing its agreement to a 2013 policy statement on patents subject to voluntary fair, reasonable and nondiscriminatory (FRAND) terms. Created by DOJ and the Patent and Trademark Office, it hasn’t “accurately conveyed our position about when and how patent holders should be able to exclude competitors from practicing their technologies,” Assistant Attorney General Makan Delrahim said Friday at the Berkeley-Stanford Advanced Patent Law Institute in Palo Alto, California. He said DOJ will work with PTO on a new statement. Delrahim said standard-setting organizations (SSOs) “may make it too easy for patent implementers to bargain collectively and achieve sub-optimal concessions from patent holders that undermine the incentive to innovate.” There's a potential antitrust problem where a group of product manufacturers within an SSO “come together to dictate licensing terms to a patent holder as a condition for inclusion in a standard because it may be a collective exertion of monopsony power over the patent holder,” the antitrust chief said, saying such collusion can undermine innovation. As the American National Standards Institute considers creating a sample patent letter of assurance form that SSOs could use, he said the Antitrust Division has been in touch with ANSI to ensure “its efforts do not stifle competition among the standard-setting organizations.” ANSI didn’t comment.

The Copyright Office Friday requested comment by Jan. 22 for an interim rule amending regulations for “compulsory license to make and distribute phonorecords of musical works.” Via passage of the Music Modernization Act (see 1810110038), the interim rule took effect Friday.

Vizio’s Smartcast system for beaming content to a TV through a smartphone app violates two patents for manipulating wireless content from a mobile device, alleged a complaint (in Pacer) Tuesday in U.S. District Court in Santa Ana, California. Before patents 9,547,981 (granted in January 2017) and 8,135,342 (March 2012), “state of the art cell phone designs emphasized their use as standalone devices,” alleged Sockeye Licensing, which owns both patents. The patents “taught particular methods by which the cell phone could connect with and control a higher resolution display device, streaming video thereto,” it said. Each Vizio Smartcast TV “includes casting circuitry that provides a screen mirroring or casting functionality,” it said. “This allows a user to cause a Netflix movie to be downloaded from a Netflix server to the user’s smartphone, and then wirelessly cast from the smartphone to the casting circuitry for display on the TV,” violating the two patents, it said. Vizio didn’t comment Wednesday.

Inventors globally filed 3.17 million patent applications in 2017, a 5.8 percent increase from 2016 and the eighth straight year of increases, reported the World Intellectual Property Organization Monday. China’s IP office received the highest number of patent applications in 2017, a record 1.38 million, said WIPO. The U.S. Patent and Trademark Office was second (606,956 applications), followed by Japan (318,479), South Korea (204,775) and the European Patent Office (166,585), it said. Patents in force worldwide grew 5.7 percent to 13.7 million in 2017, including 2.98 million in the U.S., 2.09 million in China and 2.01 million in Japan, it said. “Demand for IP protection is rising faster than the rate of global economic growth, illustrating that IP-backed innovation is an increasingly critical component of competition and commercial activity,” said WIPO. “In just a few decades, China has constructed an IP system, encouraged homegrown innovation, joined the ranks of the world’s IP leaders and is now driving worldwide growth in IP filings.”

The Patent and Trademark Office’s 2018-22 plan Thursday prioritizes strengthening the PTO. Director Andrei Iancu's goals include "optimizing patent quality and timeliness" and "trademark quality and timeliness," and "domestic and global leadership to improve IP policy, enforcement, and protection worldwide.”

Music Modernization Act notice of inquiry comments split between those urging the Copyright Office to make it easy for the public to search sound recordings to determine if they are available for noncommercial use and those wanting a more complex search process. MMA establishes a safe harbor for noncommercial use of pre-1972 sound recordings. Comments were posted Tuesday in docket COLC-2018-0008. Public Knowledge Policy Council Meredith Rose urged the CO to make an MMA checklist “accessible and comprehensible to non-specialists, and to make it as simple as allowed by the statute.” While PK proposed the CO require users “search no more than one to two services,” the American Association of Independent Music and RIAA proposed “dividing the various sources that users should search into different categories and then requiring all users to search in all categories (until a match is found).” The MMA process “doesn’t allow for any negotiation between the user and rights owner,” the groups said, urging it be used as “last resort.” SoundExchange endorsed the A2IM-RIAA comments. Noting noncommercial users under statutory licenses differ from noncommercial use in the context of fair use, RIAA said CO guidance should be clear. IFPI said to protect sound recordings originating outside the U.S. the process should include searches in “the country of origin of the sound recording in question” and in the language of origin. The Internet Archive recommended the process “entail performing a few high quality searches on a small number of large services rather than performing a low quality search across a large number of services.” Also filing were the Music Library Association, Library Copyright Alliance, Association of American Universities, Electronic Frontier Foundation and Copyright Alliance.

The Copyright Royalty Board published a final rule Monday setting January 2019-December 2023 royalty rates for making ephemeral copies of sound recordings for transmission to business establishments. It sets royalty fees at 12.5 percent for 2019, increasing by 0.25 percent each year.

From harsher criminal penalties for some streaming piracy to more engagement with U.S. trade partners, media groups, tech companies and others had suggestions for the Office of the U.S. Intellectual Property Enforcement Coordinator in docket 2018-19863 as IPEC puts together its next three-year joint strategic plan. Google said IPEC should seek feedback from rights holders on hurdles to suing rogue sites in foreign courts and a modernization of the Copyright Office by putting registration and recordation systems online. Calling streaming piracy via plug-and-play devices an "insidious" threat, NCTA said the U.S. needs to engage trading partners more on adopting and enforcing copyright protections, and IPEC needs to prioritize trying to persuade trading partners to shut illicit streaming services. It said the FCC should use RF equipment authorization powers to deter makers and importers of piracy devices from selling in the U.S. by bringing "stiff" monetary penalties. BSA sought engagement with trade partners. The Copyright Alliance and MPAA urged continued public access to Whois data (see here and here). The alliance said IPEC should back harmonization of criminal penalties for copyright infringement, so infringement of a public performance right -- typically a misdemeanor -- is treated the same as infringement of the reproduction and distribution rights, which can result in felony charges. It said the Trusted Notifier program between MPAA and some domain name registries bore fruit in fighting online infringement, and IPEC should encourage more domain registries and registrars to employ similar arrangements. The Independent Film & TV Alliance and RIAA and National Music Publishers' Association (see here and here) said Congress should classify large-scale streaming piracy as a felony. The U.S.-Mexico-Canada Agreement doesn't include a fair use standard, and IPEC should encourage U.S. trade negotiators to push for one, R Street Institute said, urging roundtable discussions on such issues as how the U.S. can encourage other nations to adopt fair use models. Public Knowledge said IPEC needs to be mindful of how enforcement schemes might affect non-infringing users. PK said enforcement should focus "on targeted bad actors." The Internet Association said the U.S. needs to defend copyright law flexibility that includes fair use and Digital Millennium Copyright Act safe harbors both domestically and internationally. Push back against curtailing intermediary liability protections, IA asked. Tech groups told the U.S. Trade Representative that bolstering IP rights should be a high priority in negotiating a new trade agreement with Japan (see 1811260011).