By Weining Bai, Penn Law ‘16 In the event that you’re not fluent in I.P. law jargon, and for some reason happen to be reading this, how does the term “patent assertion entity” grab you? Most will probably find the term neutral or perhaps even constructive, and have no idea what it means. Google it, and one of the top results you will see, is the link to the Wikipedia entry for “Patent Troll.” Now that probably sounds much more familiar.
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Save the Date for the 2014 PIPG Symposium!
Mark your calendars for this year's Penn Intellectual Property Group's Annual Symposium. This year's conference will take place on March 20th and will focus on a host of issues related to the rapidly changing world of patent law. For more information on the conference, to register, or to participate as a sponsor, please reach out to Jordan Romanoff (romanoff
Deterring Patent Trolls (Part 2): Proposed Legislation Raises the Bar on Infringement Litigation
by Casey Kraning-Rush, Ph.D., L'16 In 2011, a Boston University study found that business entities in the United States incurred $29 billion in direct costs due to acts by patent assertion entities (PAEs), sometimes referred to in the media as patent trolls. PAEs are companies which enforce patent rights by alleging infringement with the aim of collecting licensing fees or settlement costs, without actually manufacturing the products covered by their patents. This past June, President Barack Obama publically urged Congress and the United States Patent and Trademark Office (USPTO) to take steps towards reducing abusive lawsuits by enacting legislation and examination rules aimed at increasing specificity in both claim language and infringement allegations.
Read MoreDeterring Patent Trolls: SCOTUS Cases to Watch
By Kaiyi Xie, L’16, USPTO Reg. No. 70381
Non-practicing entities (a more sanguine term for patent trolls) most directly burden small and medium-sized companies with litigation and settlement costs. This cost totaled $29 billion in 2011, according to Boston University School of Law researchers. That’s more than the government shutdown’s $26 billion cost to the U.S.
Read MoreBeware of “Trademark” Hijackers: International Firms Welcome Changes to Chinese Law
By Sherry Shen, Penn Law '16 The idea that China has not had the strongest track record in intellectual property law may be an understatement. In July of this past year, Apple paid a hefty settlement fee of $60 million dollars to Proview Technology so that it could use its own trademark for its latest version of the iPad in China – an example of a prevalent phenomenon in China known as trademark hijacking. Fortunately, in late August of this year, China made significant revisions in its trademark laws, which will be implemented on May 1, 2014. While many of the effects remain to be seen, experts are in agreement that these amendments are a significant step in the right direction.
Read MoreUpdate: Studios File Supreme Court Petition in Aereo Case
Major broadcasters filed a Supreme Court petition on Friday (ahead of today's filing deadline) alleging that the online streaming service infringes on the broadcaster's copyright to publicly perform their works. Aereo's technology allows consumers to access broadcasts of the content outside of the licensed cable and satellite platforms. More info from the Wall Street Journal: http://online.wsj.com/news/article_email/SB10001424052702303382004579129752289337822-lMyQjAxMTAzMDEwMDExNDAyWj
Shutdown Jeopardizes Negotiations: Major American I.P. Interests in Asia on the Line. by Weining Bai L'16
As the temporary shutdown of government drags on in Washington, media outlets have gone to great lengths outlining its damaging impacts: our fish are no longer inspected as thoroughly, and the Panda Cam blackout is raising plenty of social media outrage. However, little attention has been paid to President Obama’s cancelled trip to Bali, where 21 heads of state currently gather for the Asia-Pacific Economic Cooperation (APEC) summit. Far more than a simple loss of formality, the President’s absence seriously jeopardizes negotiations that have far-reaching consequences in geo-politic, trade barriers, and, you guessed it, international intellectual property rights disputes. Occurring concurrently at the APEC summit is the Trans-Pacific Partnership (TPP) negotiations involving 12 APEC nations, including the United States, Japan, Canada, Australia, and developing economies on the Pacific Rim like Malaysia, Brunei and Vietnam to establish the first broad trans-pacific free trade agreements of such scale. The TPP agreement will include an intellectual property rights chapter including provisions for intellectual property protection for pharmaceutical developers. The American Provision for the I.P. Chapter of the TPP demands longer monopolies for pharmaceutical patent holders and heightened enforcement of existing UN regulations governing patent infringement. The new standards sought by the American provision are notably stricter than current UN regulations protecting patents internationally. Many developing economies, including those attending the TPP, depend on generic off-brand drugs for affordable access to medicine. There is significant political pressure within these countries to block or mitigate the American Provision. Indeed, critics of this American Provision have charged President Obama with attempting to impose American patent laws on the rest of the world.
There is hope that the Bali negotiations will finalize a trans-Pacific free trade agreement. Should the United States push through its proposed measures, the TPP will not only protect American patent rights in current TPP nations, but also set a working precedent from which the United States can negotiate with other major Asian economies, including China and India. China especially has expressed interest in joining the TPP in a few years. Should the United States be able to expand on current intellectual property right protection in East Asia through the TPP negotiations, the ramifications of convincing China and/or India to conform to these new standards would be huge. Expanding patent and copyright protection for American enterprises in Chinese and Indian markets has the potential to increase American exports to and lower our trade deficit with Asia by billions of dollars.
In Bali right now, the American negotiating position has been significantly weakened by Obama’s unplanned absence. After months of technocrats talking out logistics, the TPP negotiations have moved into the phase where heads of state make the political calls on the controversial points. This soap opera in Washington has forced the U.S. to negotiate without a comparable authority at the tables. The leaders in Bali still maintain that negotiations are in the final phase, and will be finalized by the end of 2013. This, then, will essentially be the last occasion for every TPP head of state to convene personally and strike the necessary compromises. The shutdown has forced the President to abandon this crucial stage of the negotiations, and jeopardizes the chances America’s agenda will be realized in the final agreement. Future windfalls American businesses and inventors could reap from this new standard of international intellectual property rights enforcement now hangs in the balance.
If you’re interested in keeping up with the negotiations in Bali, official updates from the United States Trade Representatives can be found here: http://www.ustr.gov/tpp
The American Provision that’s being proposed at the TPP conference has been provided to the public by Representative Darrell Issa, and can be found on the Citizens Trade official site: http://www.citizenstrade.org/ctc/wp-content/uploads/2011/10/TransPacificIP1.pdf