News and Commentary
In Protocol, Janko Roettgers discusses the patent dispute between Sonos and Google. Last year, Sonos sued Google for patent infringement and Google in turn sued Sonos for the same. However, the initial patent infringement suit brought by Sonos was prompted after Google prevented from simultaneously running both Amazon Alexa and Google Assistant. This makes for an interesting case study where intellectual property infringement acts as a proxy war in the fight over interoperability.
Good news: Kerry Sheehan writes for iFixit about a new, nationwide, right-to-repair (R2R) bill introduced in Congress by Rep. Joe Morelle (D-NY). The bill is similar to other R2R legislation introduced across the United States, with requirements for device manufacturers to provide device owners and independent repair shops with manuals, tools, and replacement parts necessary to repair electronic devices.
It’s here! Yesterday, the Supreme Court ruled in Arthrex v. Smith & Nephew. The ruling is a complicated one, but Josh Landau of Patent Progress has an excellent summary of the decision. Five justices (Roberts, Gorsuch, Alito, Kavanaugh, and Barrett) found that the structure of the PTAB violated the Appointments Clause and that the Administrative Patent Judges lacked sufficient oversight. Gorsuch argued for the elimination of the PTAB entirely–echoing his dissent in Oil States three years ago. Thomas, Breyer, Sotomayor, and Kagan found that the APJs were inferior officers, but only Thomas found nothing wrong with the current structure of the PTAB. To summarize, writes Landau, “Five Justices found the appointment scheme for PTAB judges to be Constitutionally impermissible. But seven Justices found the remedy—striking the three-judge requirement to the extent required to permit Directorial review of IPR decisions—to be the correct remedy…IPR appears to be here to stay, with at most minor changes.” Here is the opinion expressed visually:
As I turn to the patent quality hearing, a little preview of what I’ve been working on. pic.twitter.com/uKuIr9wuhf
— Joshua Landau (@PatentJosh) June 22, 2021
Writing for TechDirt, Mike Masnick provides a rundown of a copyright infringement claim brought by a host of music publishers against the kids’ gaming platform Roblox. The lawsuit makes a litany of claims, but the most problematic–as raised by Masnick–is the allegation that Roblox encourage the uploading of protected music (“inducement”), but that claim is based on a misinterpretation of a quote by Roblox’s Jon Vlassopulos in which he encouraged rights holders to negotiate licensing deals. The complaint further alleges that because Roblox moderates some uploads, it must be turning a blind eye to infringing uploads. The complaint is a deeply problematic attempt to go after current safe harbor protections for platforms.
Also writing for TechDirt, Cathy Gellis talks about intellectual property–specifically software patents–in the context of antitrust. She makes the important point that if authorities and policymakers are concerned about M&A, they should be deeply troubled by software patents which not only give access to a patented technology by the acquiring firm (not necessarily a problem) but also give the purchasers the ability to block any other firm from suing such technology. “[S]top giving them so much monopoly power in the first place.”