Dear Readers,
This edition of the TechReg Chronicle addresses issues related to the annual LeadershIP EU Conference, which took place in Washington, DC on April 9, 2024. The panelists span the private and public sectors: regulators, academics, and private practitioners. Each brings a unique perspective on current issues relevant to the interaction between the IP rules, antitrust, and emerging fields, including notably artificial intelligence (“AI”).
On that topic, Dr. Kirti Gupta explores the issues raised by the integration of AI into creative and inventive processes. Her paper summarizes the evolving dynamics between AI and IP, focusing on the patentability of AI-assisted inventions, copyrightability of AI-generated works, and potential copyright infringement of content for training AI models and by AI generated outputs. The paper examines recent legal rulings, such as those by the United States Patent and Trademark Office and the U.S. Copyright Office, highlighting the ongoing debates over AI as an inventor or creator. Furthermore, it discusses the implications of copyright infringement lawsuits and data licensing activity, emphasizing the need for clarity in IP rights and responsibilities.
The Hon. Paul R. Michel (ret.) & Matthew J. Dowd discuss the patent system’s role in promoting competition. In their view, patents are frequently touted as detrimental to competition, but that perspective overlooks a more comprehensive view of competition in an innovation economy. As a result of almost twenty years of adverse judicial decisions, arguably the legal system now deters competition and creates a David-versus-Goliath situation for smaller startups. Larger, entrenched corporations disproportionately benefit from weaker patents, leaving innovative startups with a mountain to climb. The authors discuss recent legislative proposals that would restore a more equitable competition environment and steer the American focus back to innovation.
Taking an unconventional view, Jonathan M. Barnett, rather than characterizing patents as barriers to competition, emphasizes the function played by IP rights in enabling transactions between innovators and the holders of complementary non-innovation assets. In those cases, IP rights can lower entry costs and expand access by reducing expropriation risk and enabling transactions between innovators and entities that hold capital, among other key competitive assets. Evidence from U.S. technology history (and in particular, the biotechnology and semiconductor markets) is consistent with this thesis.
Finally, Richard Vary explores recent German FRAND injunction jurisprudence, particularly from the Munich courts, and contrasts it with the approach in other jurisdictions, notably England and Wales. Other commentators have noted that the German courts have never upheld a FRAND defense. This, they say, is evidence of a need for reform, and for the Unified Patent Court (“UPC”) to adopt a different approach. In the author’s view, however, this is somewhat unfair. German courts were the first to recognize a FRAND defense, in Standard Spundfass and Siemens v. Amoi. The author argues that the UPC is proving successful as a patents court. It has achieved that success through adopting the parts of English and mainland European civil litigation procedure that work best in patent cases. If it could take the best aspects of English and German procedure in FRAND disputes, it may resolve those quickly, cost-effectively and fairly.
As always, many thanks to our great panel of authors.
Sincerely,
CPI Team
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