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Thursday, June 22 2017 @ 06:47 PM CDT

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Supreme Court Curtails Patent Case "Forum Shopping"

Intellectual property Rights

Courtesy Library of CongressThe Supreme Court issued an opinion today that restricts the ability of patent owners to choose the court in which they bring an infringement suit. The case is called TC Heartland LLC v. Kraft Food Group Banks LLC, and the justices unanimously ruled in favor of the new restrictions.

The importance of the decision arises from the fact that litgants have always engaged in "forum shopping," meaning a party files suit in a given court because that's where they think they will be most likely to win.

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Google Announces Android “PAX” Cross-License Program – But to What Purpose?

Intellectual property Rights

PaxTux, courtesy of ne~commonswiki /Wikimedia Commons - GNU Free Documentation License, Version 1.2 or any laterOn Monday, Google announced a new program intended to create an expanding umbrella of protection over its Android operating system and Google Applications pre-installed on devices that meet Android's compatibility requirements. Whether the new initiative will provide such protection, or represents only a “feel good” PR opportunity remains to be seen. If history and what’s visible so far are any indication, the odds tip towards the latter.

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Court Rules Standards Incorporated by Reference into Laws Need not be Free

Intellectual property Rights

When standards developed by the private sector become laws, should anyone be able to download a copy for free? At first blush, the answer seems too obvious to debate. But yesterday, a U.S. district court held otherwise, saying that the developer of a standard that has been “incorporated by reference” (IBR) into a law continues to have the right to enforce its copyright. It also confirmed the right to charge a reasonable fee for an IBR standard.

The ruling (subject to appeal) is less surprising when it is reviewed in detail. The defendant is Public.Resource.org (PRC), founded by public access advocate Carl Malamud. Malamud has been posting thousands of IBR standards on the PRC website for years. More recently, he ratcheted up his conduct to the point where it appeared he was daring standards setting organizations (SSOs) to sue him in order to settle the issue once and for all.

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Effective IPR Policies and Standards Organization Success

Intellectual property Rights

Once upon a time, if you asked a standards setting organization (SSO) what its intellectual property policy rights (IPR) policy was, you’d get a simple answer: “We own the copyright in everything we produce.”  Today, if an SSO that develops standards in the technology arena were to give an answer like that, it would find that its members were heading for the exits.

What’s changed, of course, is that information technology has infiltrated almost every aspect of our existence, and that includes standards development as well. For example, an SSO that used to limit its attention to setting construction standards relating to heating and ventilation installations will now also host working groups developing standards for sophisticated building control systems.

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Patents and Patent Reform: An OFE Academy Fellow Interview

Intellectual property Rights

For some years now, I've been a Fellow of a European think tank called the OpenForum Academy, which focuses on all things open: open standards, open source, open data, open research, and so on. It's an affiliate of a non-profit called OpenForum Europe, which advocates for same causes bofore the legislature and agencies of the European Union and those of its constituent states. The EU Parliament as well as governemtal agencies and legislatures in the U.K. and elsewhere have been actively engaged on these topics, and have welcomed this input.

OFE Academy is made up principally of an invited group of academics, journalists, technical experts and others that are recognized for their leadership and expertise in the area of openness (you can find a list of them here). Recently, the Academy launched a Fellow interivew series, and this week the interviewee happens to be me. Below I've pasted in a few outtakes from the much longer interview, which you can find here.

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Licensing Standards that Include Code: Heads or Tails?

Intellectual property Rights

Courtesy of Bitjungle/Wikimedia Commons -  Creative Commons Attribution-Share Alike 2.0 Generic license.Once upon a time, standards were standards and open source software was open source software (OSS), and the only thing people worried about was whether the copyright and patent rules relating to the standards would prevent them from being implemented in OSS. Actually, that was complicated enough, but it seems simple in comparison now that OSS is being included in the standards themselves. Now what?

If this sounds unusual and exotic, it isn’t. In fact, code has been creeping into standards for years, often without the keepers of the intellectual property rights (IPR) Policies governing the standards even being aware of it.

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Egregious Nonsense Regarding eBook Standards

Intellectual property Rights

It takes something truly ridiculous to make me write an out and out rant. Still, every now and then I read something that I can’t avoid responding to, because of the degree to which it misrepresents reality in an area I both care about and am knowledgeable in. Yesterday I had that experience when I read an article contending that proprietary eBook formats are good rather than bad, and that while “someday” we may have a truly interoperable eBook format, for now we should just sit back and appreciate proprietary formats in this area.

What rubbish.

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S. Ct. Rules that a “Good-Faith Belief” is no Defense to Patent Infringement Liability

Intellectual property Rights

Courtesy of Matt Wade/Wikimedia Commons, Creative Commons Attribution-Share Alike 3.0 UnportedMost engineers are aware that patent owners can sue those that infringe their patents. It may surprise them, however to know that a patent owner can also sue someone for only “inducing” another to infringe their patent. Luckily, in both cases, the patent owner only has a right to sue if the other party acted “knowingly.”

As you might expect, the circumstances and facts that are deemed to prove knowledge are the subject of much litigation and many legal opinions. Recently, the U.S. Supreme Court added another decision to the pile, and a distinction that the court drew on this question may surprise you. It should also particularly concern open source software developers, for reasons I’ll return to below.

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Patent Pledges and Open Source Software Development

Intellectual property Rights

For all its benefits, one aspect of open source software does cause headaches: understanding the legal terms that control its development and use. For starters, scores of licenses have been created that the Open Source Initiative recognizes as meeting the definition of an “open source license.” While the percentage of these licenses that are in wide use is small, there are significant and important differences between many of these popular licenses. Moreover, determining what rights are granted in some cases requires referring to what the community thinks they mean (rather than their actual text), and in others by the context in which the license is used.

Rather like interpreting the applicability of the U.S. Constitution to modern life, except that there is no Supreme Court available to call the coin toss when people disagree.

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Dept. of Justice Blesses IEEE Rules on Injunctions and Reasonability

Intellectual property Rights

Following almost two years of debate, public posting of five drafts, and consideration of 680 comments, IEEE-SA preliminarily approved amendments to its Patent Policy to address these and other questions. IEEE-SA is the developer of the Wi-Fi standards (and thousands of other specifications). It is one of the major standards development venues in the information and communications technology industry, and thus a venue within which the question bears great weight. However, final approval of the amendments was made contingent upon receiving a favorable “Business Review” letter from the U.S. Department of Justice.

In a business review letter, the regulator responds to a detailed explanation and rationale for a proposed action, and indicates whether it would, or would not, be likely to challenge that action if implemented. In this case the DoJ expressed its belief that the proposed actions would be procompetitive rather than restricting competition, and that it would therefore not be inclined to challenge the final approval and implementation of the policy changes. That approval will occur later this month when the proposed policy updates are approved by the IEEE-SA Board of Directors.