Rent Check
It’s patent quality week! I have written about patent quality as it relates to property rights. In short, if we want to view patents as property, then we need to be sure that they are of sufficient quality to deserve such a name. If not, then we need to be sure that the taking of private property inherent in the creation of patent rights is justified by sufficiently large expansion of what others can do with their own property.
The Biden administration’s executive order promoting competition in the US economy was released about two weeks ago, and there’s a lot to like, especially as it relates to intellectual property. Biden has an FTC chomping at the bit to enforce rules against anticompetitive conduct, but there’s no substitute for a statutory fix–especially as it relates to intellectual property laws.
News and Commentary
Writing for Techdirt in celebration of patent quality week, Mike Masnick shares a rather clever idea to determine whether or not a patent is of high-quality: use independent invention as evidence that a patented invention is not obvious. Brink Lindsey and I suggested a similar idea, where a simultaneous invention would either serve as an affirmative defense against infringement or allow the independent inventor to also receive the rights to the patent in question.
Also writing in celebration of patent quality week is Abby Rives of Engine. In Technica.ly, she discusses why we need patent quality week, how the scale of the US patent system makes some errors by the USPTO inevitable, and the costs of asserting vague, low-quality patents.
The USPTO put out a call for research on the effects of Supreme Court precedent on patent subject matter eligibility (found in Section 101 of the patent act). The request for comment reads like USPTO is looking to expand subject matter, and Joff Wild at IAM hypothesizes that this will be used as a roadmap for future legislation on the subject.
A challenge against Article 17 (dealing with unauthorized uploads which functionally require ContentID-style upload filters) of the EU’s copyright directive brought by Poland has failed. However, while the court did not find that upload filters violate fundamental rights in the EU, it did say that “In order for that right [to free expression] to be effective, providers…are not allowed to preventively block all content reproducing the protected subject matter identified by the rightholders, including lawful content.” The court further elaborated that “sharing service providers must only detect and block content that is ‘identical’ or ‘equivalent’ to the protected subject matter identified by the rightholders, that is to say content the unlawfulness of which may be regarded as manifest in the light of the information provided by the rightholders.” This is good news, as upload filters are error-prone when it comes to free speech. The regime (implicitly) advocated for in this decision is one where “hash matching” technology would be useful, which scans for identical uploads.
Writing for EFF, Katharine Trendacosta writes about the (attempted) abuse of copyright filters by law enforcement officers playing music while they are being filmed. While this is first and foremost an issue of law enforcement attempting to avoid scrutiny, it does raise concerns about the possibility of false positives being abused by bad-faith actors to take down legitimate speech and recording.
New Research
For Comparative Patent Remedies, Thomas Cotter has a rundown of some new and old research on patent injunctions, including research on the issuance of injunctions when considering the likelihood of future infringement, the general logic of preliminary injunctions, the role of public interest in issuing injunctions, and the historical role of royalties versus injunctions in addressing patent infringement claims.
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