Before policymakers regulate AI, they need to understand a fundamental technology: neural networks.
Congress needs to act on child care challenges
The video game industry is concentrated in a handful of locations, leaving incredible talent in underserved areas frequently overlooked. Ben Kvalo started Midwest Games to change that narrative, supporting underrepresented game developers because increasing diversity in game development leads to better products and bigger markets. Ben recently joined us to talk about Midwest Games, the challenges of raising capital in the Midwest, the importance of small developers in maintaining a healthy video game ecosystem, and the potential benefits of AI for the industry.
Engine statement on SCOTUS Decision in Moody v. NetChoice and NetChoice v. Paxton
Consumer weather models are too coarse for farms and conservancies that are large enough to occupy their own microclimates. Dr. Carlos Gaitan started Benchmark Labs to solve this problem, leveraging artificial intelligence to create custom weather models for farmers and conservators—helping them increase their crop yield and better manage their land. Carlos recently sat down with us to discuss Benchmark Labs, his experience as an immigrant founder, the value of government funding for startups, and how policymakers should approach AI policy.
Section 512 of the Digital Millennium Copyright Act (“DMCA”) is a landmark law that has provided startups, copyright holders, and Internet users with a balanced framework to address allegations of online infringement. But Congress is considering revising the law, and in that process it is critical for policymakers to carefully consider the importance of the DMCA to the startups and creators that rely on its protections.
During these unprecedented times, the U.S. Court of Appeals for the Federal Circuit is one of the many institutions taking steps to avoid the spread of COVID-19: shifting to telephonic proceedings, releasing live audio of oral arguments, restricting in-person access to court buildings, and modifying operations. But the court is continuing its work, issuing new opinions every day.
Engine, Unified Patents, CableLabs, The Niskanen Center, and The R Street Institute filed an amicus brief with the U.S. Supreme Court this week in support of General Electric’s request that the Court consider whether competitors may bring patent validity disputes to the patent office and patent appeals court.
Engine submitted comments to the U.S. Patent and Trademark Office last week in response to the agency’s request for public comment on “the impact of artificial intelligence (“AI”) technologies on intellectual property law and policy.”
A recent Federal Circuit decision about fee shifting is important to startups facing patent litigation and has broader relevance for confirming that attorney fee awards can be a tool for deterring abusive patent litigation. Startups facing extortive settlement demands for specious patent infringement claims can ask to have the plaintiff pay their attorney fees if they prevail in court. The availability of fees is valuable, because the cost of defending even a meritless patent lawsuit is expensive. But if plaintiffs who file those meritless cases may have to cover the costs of defense, it can help level the playing field, even before the parties find themselves in court.
Last week, Engine and the Electronic Frontier Foundation submitted comments to the U.S. Patent and Trademark Office in response to the agency’s call for comments on patenting artificial intelligence inventions. The USPTO is collecting information to determine “whether further guidance is needed to promote the predictability and reliability of patenting [AI] inventions and to ensure that appropriate patent protection incentives are in place to encourage further innovation in and around this critical area.”
The Federal Circuit’s recent decision in Arthrex, Inc. v. Smith & Nephew, Inc. changes the framework for appointing and removing certain patent office officials—the Administrative Patent Judges (APJs). APJs serve on the Patent Trial and Appeal Board which, among other functions, can take a “second look” at weak or overbroad patents that previously issued, and invalidate claims that should not have issued in the first place. Instead of challenging a low-quality patent in federal court, which takes multiple years and millions of dollars, the Patent Trial and Appeal Board can consider a limited scope of validity challenges in less than 18 months and for a fraction of the cost. Therefore, it is a more accessible place for startups to go to challenge weak patents they are accused of infringing, and has the ancillary benefit of increasing overall patent quality and making the abusive patent litigation business less profitable.
The House’s vote in favor of the CASE Act is disappointing, particularly because there were no hearings or debates in the lower chamber to discuss the many flaws in this legislation. The bill is purportedly designed to protect small copyright holders by establishing an extra-judicial Copyright Claims Board within the U.S. Copyright Office to adjudicate infringement claims outside of a federal court setting. However, without the traditional safeguards of the federal courts, this newly established tribunal would have the authority to grant substantial financial damage awards — up to $30,000 per proceeding — to potentially abusive parties looking to strong-arm settlements from unsuspecting companies and online users.
Five San Francisco-based tech companies sent a letter to Speaker of the House Nancy Pelosi (D-Calif.) and Senators Diane Feinstein (D-Calif.) and Kamala Harris (D-Calif.) today, expressing “significant concerns” with the CASE Act. The proposed bill would create an extra-judicial board within the U.S. Copyright Office to adjudicate copyright infringement claims outside the traditional safeguards of federal court.
Engine submitted comments to the U.S. Patent and Trademark Office in response to the agency’s proposed rule regarding Setting and Adjusting Patent Fees During Fiscal Year 2020. The USPTO’s proposal would “set or adjust patent fees as authorized by the Leahy-Smith America Invents Act (Act or AIA), as amended by the Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018 (SUCCESS Act).”
Engine has submitted comments to the Senate Judiciary Subcommittee on Intellectual Property following the panel’s Sept. 11 hearing on the Support Technology and Research for Our Nation’s Growth and Economic Resilience (“STRONGER”) Patents Act of 2019. Among other concerns, the proposed legislation would limit the availability of inter partes review (IPR) as a mechanism for improving patent quality.
A recent Federal Circuit decision addressing the constitutionality of inter partes review (IPR)—a Patent Office review of a patent that has already been issued—is a positive development for promoting patent quality and leveling the playing field for startups involved in patent litigation. In Celgene Corp. v. Peter, the court held that IPR proceedings which result in the cancellation of issued patent claims are not an unconstitutional taking of private property. While it seems likely the Supreme Court will eventually weigh in on the question, for now IPRs remain available to startups who want to ask the U.S. Patent and Trademark Office (USPTO) to take a second look at weak patents that arguably should have never issued.
Startups facing patent litigation should be aware of recent, positive developments in patent venue law. This area of law dictates where a patentee-plaintiff can file an infringement lawsuit, and requires that a startup (or any company) can only be sued in a location (judicial district) where it has sufficient presence. Importantly, recent legal developments restrict parties—including patent assertion entities (PAEs), sometimes referred to as “patent trolls”—from suing startups in far-flung, plaintiff-friendly judicial districts. This levels the playing field in abusive patent litigation and benefits startups, who should no longer be required to defend litigation far from “home.”
The Senate Judiciary Committee is taking up a bill today that would change copyright enforcement in the U.S. and open up startups and their users to new risks. The bill, the CASE Act (S.1273), would create a process for copyright holders to address online copyright infringement by establishing a Copyright Claims Board within the U.S. Copyright Office to adjudicate copyright infringement and award substantial financial damages without the traditional safeguards of federal court.
The Subcommittee on Intellectual Property of the Senate Judiciary Committee recently held a series of hearings on the topic of patent subject matter eligibility. That Subcommittee is considering potential amendments to 35 U.S.C. §101—the provision of the Patent Act that defines what subject matter is (and is not) eligible for patent protection. In our view changes to 35 U.S.C. §101 are not needed, and we submitted comments to the Subcommittee articulating our concerns.
Engine has joined an amicus brief urging the U.S. Supreme Court to review State of Georgia v. Public.Resource.Org Inc., which will determine the extent to which a state may exclude citizens from government works under copyright law.
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