No one can deny the importance of Donald Dunner to the field of patent law. He died Wednesday (10/16/2019) at the age of 88. The man was the dean of the D.C. patent appellate BAR, and worked at Finnegan, Henderson, Farabow, Garrett & Dunner. Dunner was dedicated to IP law, and enthusiastic about protecting the interests of his many high-profile clients.
Paul Michel, who once worked as a chief judge for the United States Court of Appeals for the Federal Circuit, described Dunner as “a giant, a colossus in the field of patent law with no equal.”
Michel joked that Dunner was “the leader of every organization in the entire patent universe.”
It’s not difficult to see why Michel had such kind words to say. Dunner argued a record-breaking 175 appeals to the appellate court system. He authored work on Federal Circuit practice. He worked for the Carter administration to build the Federal Circuit court system for patent appeal. He testified to Congress before it was created.
Dunner worked for the Bar Association of the District of Columbia (specializing in IP) from 1964 to 1965. He worked for the American Intellectual Property Law Association from 1979 to 1980.
Dunner was well known for being fair and just in his decision-making. He had a reputation for such actions in court. Gene Quinn reported his death as a direct blow to IP law because “Dunner always had a grace and elegance that set him apart. He was a friend to judges and politicians, as well as a mentor to countless attorneys.”
One of his appellate partners, James Barney, wrote: “For more than four decades, Don was a mentor, a teacher, and an inspiration to many of us who sought to learn his craft of appellate advocacy.”
He continued, “He was never satisfied with a first draft, a second, or a third. In fact, drafting briefs for Don could be downright daunting. But along the way, he imparted wisdom to those eager to learn, he explained the nuts and bolts of appellate advocacy, and made us all proud to be part of the process. Don was everything I ever aspired to be as a lawyer — and still do.”
We live in a world where many of us continue to believe that legal advocates are only truly out for themselves, but Dunner was a man who made his world about showing others the good impacts that law can have.
Dunner was a Brooklyn, New York native. He studied chemical engineering at Purdue University before enlisting in the United States Army. When he got out, he decided to study law at Georgetown University. The rest is history.
Even a Democratic senator recently begged President Trump to keep pressure on China to prevent the rival country from pilfering intellectual property from the United States. Currently there are few legal barriers to prevent China from successfully stealing from United States developers. This is especially true amidst the trade war that Trump started.
Delaware Senator Chris Coons told CNBC: “My hope is that the president, having gotten us to this point, won’t back down just for some commitment to buy a couple of shiploads of soybeans — but that we will get something that is enforceable around IP theft.”
The United States and China continue to increase tariffs while both suffer the economic consequences — delayed though they may be. Many people don’t seem to realize that the full weight of this trade war may not be felt for months or years.
Negotiations are ongoing, but few are optimistic that any reasonable solution to the trade war will result from these talks. That said, Chinese firms recently purchased a large amount of soybean product — which was seen as a step in the right direction considering the country had already suspended farm-related purchases from the United States.
Even though a few compromises have been made, Senator Coons wants to make sure Trump is placing pressure to prevent IP theft, which is a subject that has gotten in the way of progress.
Vice President Pence told CNBC that the United States suffers at least a $500 million windfall annually because of this kind of theft. Then again, Pence has been known for spouting nonsense before (like throwing out the idea that the United States shouldn’t really worry about our part in the climate change fight when countries like China and India are doing little to nothing — a false “fact” which is actually the exact opposite of the truth).
Pence said, “For too long one administration after another, Republican and Democrat administrations, were willing to accept extraordinary disadvantages to American workers and American jobs in the name of trade with China.”
Coons agreed. He said, “The vice president has it right. This is essentially about China’s mercantilism. The way they have stolen vast amounts of technology. The president is right to make this the center point of the rising and sustained trade conflict.”
It’s one thing to make these talking points, and quite another to provide actual examples. No one’s saying it hasn’t happened or doesn’t happen on a regular basis, but the political powers-that-be need to start providing adequate and specific examples of these thefts before deciding on a plan of action.
Machine-learning advancements have led to new coding mechanisms by artificial intelligence, some of which are resulting in brand new patents and inventions. A team based out of the University of Surrey proposed the “first” applications for patents that arose from inventions conceived by artificial intelligence programs. The inventions themselves aren’t as flashy as the implications they might hold for the future: a light and a beverage container.
Futurist Baker McKenzie predicted last year that inventions conceived by artificial intelligence will skyrocket in the near future, which could potentially lead to a big disruption in the area of patent law.
What could AI-based inventions change about patent law?
Baker said, “The patent system was designed to incentivize innovation by granting exclusive rights to inventors for a limited time in exchange for their inventions. But it was encoded into law when there were no computers.”
This potentially puts legislators in a tough spot — especially here in the United States, where new laws are notoriously slow to roll out, if they do at all.
The process is much different (and much faster) in the United Kingdom.
Leo Kelion of the BBC said of the issue, “The UK’s Patents Act of 1977 currently requires an inventor to be a person, but the Intellectual Property Office is aware of the issue.”
According to Kelion, a spokesman said, “The government believes AI technology could increase the UK’s GDP by 10% in the next decade, and the IPO is focused on responding to the challenges that come with this growth.”
Depending on who you ask, ten percent might be a low-ball estimate. Other futurists believe that the technological singularity — that moment when machine intelligence actually ascends past our own — will occur sometime in the next ten to twenty-five years. When that happens, the potential output of new knowledge will be staggering, and it would be difficult for humans to keep up at all.
Think about what computers are already achieving, albeit in a limited fashion. According to Professor of Law Ryan Abbott, “These days, you commonly have AIs writing books and taking pictures but if you don’t have a traditional author, you cannot get copyright protection in the US.”
That could be great for traditional authors (and inventors) because it means the ability of AI to make a big dent in profits could be limited — for the time being, anyway. First, there’s a simple question that needs to be answered: do we even want to provide AI applications with the ability to copyright computer-based works and inventions? One thing is for certain: right now we’re not doing enough to study the possibilities that would result from either course of action.
There was a recent copyright infringement lawsuit against Marvel filed by Horizon Comics. Their lawsuit claims there was a too much of a similarity in the poster of the popular movie Iron Man 3 from Marvel and Horizon’s Radix comic book cover. Both feature the titular hero kneeling in almost the exact same posture (see picture below).
Marvel Entertainment was sued by Horizon Comics Production back in April 2016 when the third movie of the Iron Man series released. However, on Monday, July 15th, Marvel emerged as the standout winner in the lawsuit.
In their lawsuit, Horizon claimed that as many as six Marvel employees knew about the drawing of Caliban and the entire Radix series. They also claimed that two of the employees also had a working relationship with the creators of Radix, and it is their influence that brought about the Iron Man 3 poster into motion. But, according to J. Paul Oetken, the US district judge of New York, none of the six individuals had seen the sketch of Caliban or were involved in the design of the Iron Man 3 poster when it came out, hence ruling the case in favor of Marvel Entertainment.
J. Paul Oetken also wrote in his statement that Horizon Comics Production was not able to demonstrate any image that was strikingly similar to the Iron Man 3 poster. Although there were noteworthy similarities, they were not enough to judge the case in favor of Horizon. He also added that Horizon did not provide any proof of copying. On the other hand, Marvel came up with several pieces of evidence that proved the poster was an independent creation.
The judge in his ruling also wrote that Robert Downey Jr. featured in the photoshoot for the poster design of the movie. The photos clearly show the different postures and poses of Robert Downey Jr. crouching and kneeling from which one of those images was chosen for the poster. Since Horizon was unable to produce any distinct evidence as a rebuttal to Marvel, the court was not persuaded by their appeal to consider the similarities that exist in both the images. The news was a long time coming, especially after Horizon failed to deliver their shreds of evidence against Marvel’s business for allegedly copying the poster.
It’s worth questioning the limits and boundaries of patent protection, because copying good ideas seems to be a universal business practice. After all, how are you supposed to beat out the competition if you can’t even implement their good ideas for yourself? You expect them to do the same when you put forward an innovation, so it makes sense from a business standpoint. But when is using someone else’s idea actually stealing? Where is the line drawn in the sand?
According to Greg Reilly of the Illinois Institute of Technology’s Chicago-Kent College of Law, United States patent laws don’t allow you to outright use someone else’s design. Instead, the laws are written to basically ensure you “design around” it.
“It’s an incredibly fine line,” Reilly said. “You can be infringing on a patent without even knowing.”
In other words, it doesn’t matter if you meant to use someone else’s trade secrets. If you don’t know what the blueprint is but inadvertently copy it anyway after trying to replicate the patent’s success in your own product, then you’re just as guilty of theft. This is especially true in the automotive industry because new vehicles developed by different manufacturers are more or less put on the market with features so similar they might as well be the same.
Versata Software Inc. is a software developer working out of Texas. Years ago the company supplied Ford with programs for a new line of vehicles, but eventually Ford ended the contract. Versata sued Ford in 2015 for “somehow” developing a program that perfectly mirrored the functionality of the program it had once supplied to the auto giant. But even in 2019 the case continues to drag and drag, with an expected trial date sometime in November (assuming a settlement isn’t reached, which it almost certainly won’t be).
Versata isn’t the only one after Ford for stealing trade secrets. Three Massachusetts Institute of Technology (MIT) professors launched a lawsuit just this year after Ford allegedly ripped off their dual-port and direct-injection tech in an upcoming line of vehicles.
One of the biggest problems for companies — especially small ones — is that it’s nearly impossible to know whether or not one of your new technologies was inadvertently pilfered from another company. It may seem absurd, but think about it: not only is the population exploding, and the number of companies along with it, but the wealth of human knowledge is growing exponentially year by year. That’s in part because many researchers and scientists are working on the same stuff.
If we don’t change our patent laws soon, or at least help companies find a way to know whether or not they’ve committed theft prior to an expensive or long-lasting lawsuit, then resources will continue to be squandered when they could have instead been used to continue research and make life better for all of us. Shouldn’t knowledge be free?
Ed Sheeran is once again in legal trouble as his trial date has been set for Setepmber 11th, 2019 regarding whether or not his hit song “Thinking Out Loud” infringes on the Marvin Gaye hit “Let’s Get It On.” Ed Townsend famously co-wrote the song and his estate claim that Sheeran’s is a blatant copy. The burden will be on Sheeran to prove that the songs are not similar enough to warrant copyright infringement.
This situation is not unfamiliar to Sheeran who has found himself in trouble with copyright laws before. He was formerly sued by a trio of songwriters for his song “Photograph” which was eerily similar to their song “Amazing.” Sheeran, who writes songs for other artists, was also named in a suit in conjunction with Faith Hill and Tim McGraw whose song “The Rest of Our Lives” was alleged to be a copy of Australian country star Jasmine Rae’s “When I Found You.” The matter was settled in 2018.
We know from other previous lawsuits that the heirs of Marvin Gaye are very prone to litigation as they successfully filed a copyright infringement lawsuit against Pharrell Williams and Robin Thicke over their song “Blurred Lines” which sounded a lot like “Got To Give It Up.” The state won $5 million dollars and to give the estate 50% of all future royalties.
Musicology experts will testify on whether or not that “Thinking Out Loud” and “Let’s Get It On” are similar. However, it did not help that Sheeran did perform a mashup of these two songs. While the trial date has been set, there is still a chance that these two may settle out of court. Take a listen to the two song and decide for yourself if there’s copyright infringement.
THINKING OUT LOUD
LETS GET IT ON
Truvada, also known as PrEP, is an HIV prevention drug that has caused a lot of controversy. The patent for this groundbreaking dug is held by Gilead Scientists. Recently Corey Johnson, speaker of the New York City Council, who is also HIV+, called for the National Institute of Health to break the patent that allows Gilead Scientist to exclusively manufacture and market the drug. The drug when taken consistently reduces the risk of HIV infection by nearly 100 percent.
There has been a movement called PrEP4All #BreakThePatent which encourages the government to invoke the Bayh-Dole Act or the Trademark Law Amendments Act. The Act states that a patent can be broken if the government believes that the action is for the greater good of the public. Corey Johnson is now the highest-ranking U.S. Official to join the movement.
“As an HIV+ elected official, I have a responsibility to the activists who came before me who I believe literally saved my life, to those we have lost to the AIDS crisis, and to those who come after me to do everything in my power to end this epidemic once and for all. The cost of PrEP in our country reveals something deeply rotten about our healthcare system, and the NIH needs to march in and break the patent immediately. This is life or death and there is no time to waste.”
HIV/AIDS activists believe that the current price of Truvada prevents many people from being able to purchase it. However, Gilead released a statement that through their patient assistance program, many patients can get Truvada for as little as $5. Generic Truvada is available in other countries where the price is roughly $25 per month. Since Gilead has exclusive rights to sell it in The United States, currently one year’s supply is $20,000 or $1,700 a month.
In a statement by Johnson, only 8% of the 1.1 million Americans who need PrEP are taking it. In big cities like New York and Miami, Florida this drug is taken mostly by homosexual and bisexual men which means women who are married to HIV+ spouses are not being protected.
Not all of us have the respect for intellectual property we should, and that’s in part because it’s something many of us simply don’t understand. Most of us have seen the litany of copyright or reproduction warning on VHS tapes, DVDs, and Blu-rays. They threaten huge fines and potential jail time for those who make illegal copies of protected works. That’s because the art itself is copyrighted. Intellectual property, though, is less tangible creative work, but it falls under the far-reaching copyright umbrella.
“The Pirate Bay” is a website that provides would-be copyright or IP thieves with an online index of music, movies, ebooks, and software, from which to dutifully plunder. In addition to the files themselves, users have the option to use torrenting software to share these files online. The website is routinely taken down by authorities in whichever country currently houses its servers, but it always manages to stay alive.
Most notably, shows like Game of Thrones and The Walking Dead are among the most pirated, potentially costing HBO and AMC, respectively, millions of dollars in damages. The Pirate Bay’s founders were eventually tried and found guilty for assisting in the infringement of copyright law worldwide. They were sentenced to a short prison term after the Swedish trial, but the website has continued to thrive. The website, and those who use it, are all in violation of the law. But does it matter?
From a moral perspective, it’s up to the individual. From a legal perspective, it only matters if you’re one of those who are “seeding” the content available for download on the website. These are the individuals who have the most to lose from copyright law, not because they’re the only ones in violation, but because there are far fewer of them. They take enough precautions that they’re more difficult to trace. One season finale of Game of Thrones was downloaded a billion times. Think you can put all those people in prison? Good luck!
The Copyright Alert System (or CAS) was implemented as a measure to combat piracy in 2013. It was meant as more of an “educational” program to limit piracy rather than a system for implementing penalty. Unfortunately CAS is so difficult to trigger that the six-step process is something few people have likely experienced in full, and it’s still more of an inconvenience than anything else.
Copyright law epitomizes the very idea of dispute, primarily because it is applied in so many situations that seem absurd. Believe it or not, the song “happy birthday” was held under copyright for a long time, and could not be used commercially without the royalty requirement kicking in–until a judge ruled against the copyright protection for that song. That leads to a good question: when is a product, service, or artist’s work not protected under traditional copyright law?
Freedom of Expression. If Americans are obsessed with anything above all else, it’s our Constitution’s Bill of Rights. We have the First Amendment right to freedom of speech, under which falls our freedom of expression. Copyright law draws a line between expression of concepts or ideas, and the very nature of those concepts or ideas.
For example, the law protects the title Harry Potter from those who would wish to steal its characters. But another author could steal the plot and narrative almost entirely, expressing both in his or her own words and using different characters. That’s why lawsuits from one artist against another for stealing plot are so difficult to win.
Expiration Dates. Ah, but nothing lasts forever–not even copyright. You’ve probably heard of the public domain, which is a collection of works, the copyrights of which have long since expired. Expiration is dependent on the type of copyright. When most authors die, the copyright under which their work falls usually expires after 70 years have elapsed.
Fair Use. We enjoy other freedoms, which is why satirical shows like Family Guy or South Park are so successful. They use themes and ideas and even exact names from other shows we love, or rip apart various organizations and institutions to expose hypocrisy. They’re allowed to do that because criticism falls into the category of fair use. Other topics that fall into this category are education, research, and commentary. That’s why we can also teach Harry Potter in a college course without first obtaining the rights.
According to the Copyright Act, protections are not included for a number of works, including ideas, procedures, systems or processes, principles, or discoveries. It doesn’t matter how well you elaborate your work, you can’t copyright facts once publication occurs. You can only keep them to yourself beforehand.
IBM has a patented e-commerce technology which the company believes Groupon stole and used without permission. It launched a massive lawsuit against Groupon through a Delaware court in 2016, asking for a whopping $167 million to cover damages. The reasoning? IBM said that its technology was important to developing the Internet and could be licensed out to other companies. The tech was never licensed to Groupon.
Part of the case was dependent on a couple of IBM patents important to an Internet building block called Prodigy which was built and developed in the 80s. IBM has licensed the relevant tech to companies like Alphabet, Amazon, LinkedIn, and Twitter. The revenue IBM takes from licensing this patent amounts to a shocking $1.2 billion. Of course, none of that came from Groupon. Because Groupon used the technology without paying up, IBM’s bottom line was damaged. The $1.2 billion figure could have been higher.
Groupon’s lawyers purported that there was never any evidence of wrongdoing, and requested that a judge dismiss the case. It didn’t happen.
The case was ultimately decided when a jury agreed with IBM. Groupon was told to pay an estimated $83 million to cover IBM’s loss.
Of course, that wasn’t all. During the settlement process, Groupon and IBM made a deal to license technology over an extended period of time. IBM’s general manager used the circumstances as an opportunity to promote the growth of IBM’s intellectual property licensing, and why not? IBM won.
Groupon probably wasn’t happy with the eventual agreement, but the company is certainly pretending it is. Its vice president of global communication, Bill Roberts, acknowledged that the agreement will help ensure that Groupon can continue to provide a wealth of products and services to the consumers who want or need them.
Over recent years, the number of IP disputes have continued to increase. In 2001, there were 1557 cases reported. That number skyrocketed to a high of 3074 in 2017. With intellectual property becoming more important, the number of cases will likely continue to go up.