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The Impacts Of Driverless Vehicles On Intellectual Property Law

Industry analysts (in this case: lawyers) believe that there will be an influx of new intellectual property lawsuits in the automotive industry due to new technologies surrounding driverless vehicles. The reason is simple enough. Auto manufacturers aren’t the only ones trying to conceive and adapt these technologies. Ten years ago, that might have been the case. Now you have behemoths like Apple, Google, Microsoft (and basically every other tech giant) in on the game.

Although traditional car manufacturers don’t often sue one another over IP (because they’ve seen the can of worms that can open easily enough from what’s happened in big tech), the introduction of, well, big tech, into their arena could increase the burden on everyone. New legislation is very much needed to figure out what to do about IP relating to automated vehicles in and outside of traditional car manufacturers.

And where have driverless vehicles been tested the most? In that United States, that would be in sunny states like California and Nevada. Basically, wherever the weather cooperates on a nearly daily basis. Socal injury lawyers might have trouble attracting clients who’ve actually been injured if their strategies and the laws underlying them don’t change soon. Driverless vehicles will likely reduce the accident rate by an order of magnitude.

But the good news is that the flood of legislation is coming soon.

Even if lawmakers weren’t interested (they are), there has been an endless stream of new patents for underlying technologies for driverless vehicles. For now, there are plenty of issues relating to technology or IP that need to be sorted out first. These include:

  • A definitive answer to who is liable when an accident occurs due to collision avoidance technologies already on the market. You’ve already seen these technologies in the vehicles you rent or own: blind spot detection, lane control, automatic braking, etc.
  • Determining who controls intellectual properties like automatic parking, automotive engine control circuits, LIDAR, WiFi, etc.
  • Lawmakers should take note of how AI works to pair with machine learning without much human involvement. How will cybersecurity concerns be addressed? We’ve all seen those very imaginative movies by now…

The market for driverless vehicles will likely exceed $42 billion by the year 2025. That’s a hefty sum, and everyone wants their fair share of the pie. 

But there’s good news, too. Our predictions could be completely wrong! Many car manufacturers and tech companies acknowledge the benefits of collaboration to get their vehicles on the market sooner. They realize that the growth of this market will explode, and it’s more money in everyone’s pockets. And they technically don’t have any choice but to collaborate. Where can they find the bright minds capable of tackling the type of algorithms necessary to make this technology a reality? Silicon Valley. And who owns Silicon Valley? …Big tech. 

There have been several high-profile collaborations already, including Google’s agreement with Chrysler to help produce minivans or Ford’s investment in a San Francisco-based company called Pivotal to develop software. These types of arrangements will only become more common as time goes on.

Intellectual Property Lawsuits No One Saw Coming

To say that intellectual property is a difficult concept for people to wrap their heads around is an understatement. Technically, you can’t trademark or patent an “idea.” You can only trademark something tangible. But what does that mean in reference to IP? You could trademark a company name or logo because those fall under IP law. You could trademark an underlying technology. Anyway, the point is that these weird rules have led to some amusing lawsuits. Here are a few you might enjoy hearing about.

The Hershey company sued a number of marijuana dispensaries in Washington and Colorado directly after pot was legalized in those states because the dispensaries were allegedly selling knockoffs with names like “Reefers Peanut Butter Cups.” Hershey didn’t find this nearly as amusing as we do. Sadly, Hershey won the trademark case.

Know who Anna Short Harrington was? Don’t worry — no one does. But one of her descendants has sued Quaker Oats and PepsiCo for a whopping $2 billion. The descendant alleges that Quaker Oats and PepsiCo didn’t properly pay Harrington for using her likeness on Aunt Jemima bottles. The lawsuit questioned Harrington’s legal status as an employee or contractor. The Minnesota judge threw out the case.

You’ll remember that we mentioned in a previous post a court ruling that allows IPR proceedings for those who would like to challenge a patent. Basically, these go directly through the Patent Office, and have become the easiest way to mount a challenge. But bigger companies — like Big Pharma, for example — never expected to be challenged in quite this way. That’s because it’s pretty much just a money grab for the challenger.

But how does that make anyone money? If you answered the stock market, you hit that nail on the head. The challenger would either buy or sell shares of stock depending on whether the IPR would likely harm or help a particular company. Instant money. And really shady.

What Is A Land Patent — And How Can I File One?

To own a big asset in the United States, you usually have to wave around a little piece of paper with your name and signature under the address. It’s a government-provided “title” or “deed” to prove ownership — but it’s also called a land patent after certain conditions have been met. This patent works much like intellectual property ownership or any other old patent. Usually, another person (or the government) cannot steal it from you. There are exceptions, but we’ll pretend you already know about them for now. 

Land patents are nothing new, and have been around since before the United States declared independence from the Brits. For example, the Virginia Colony in 1722 was made up of a great deal of open land that had yet to be patented. It was considered a part of the frontier where the Native Americans held authority — until we the shadowy puppet masters decided to patent it to colonists. Governor Spotswood signed the Treaty of Albany, which pushed the Iroquois even farther back while claiming the land for Virginia residents. Part of the land claimed was in Northern Virginia, along with Loudon.

Not surprisingly, even the land patents of today were derived wholly from old English law. 

There are a few things to know about land patents, but first we need to define the differences between public land and public domain. Public land refers to any land that is being used for a specific use, like national forest, national parks, or wilderness. Public domain refers to any land owned for private use, even when that land is “conveyed” to the U.S. government for its use. 

But land patents don’t mean ownership the way most of us know. They convey certain rights to the owner. Land provided under a patent cannot be taxed, foreclosed upon, civilly litigated against, used by the state or federal government for other purposes, etc. If there is well water under the land, the owner of the patent also owns the water. 

Land patents have associated disadvantages as well. You’ll find it difficult to obtain financing for the land, emergency services are not obligated to visit the land (because remember: no taxes), and any such service is subject to a separate contract with the land patent owner. For most people, these disadvantages make it less appetizing to get a land patent. 

Those interested in obtaining a land patent must first produce proof that you own the land you want patented, and you must know the exact boundaries of the property. After procuring the requisite information, take the property deed and description to the BLM and request the patent. Don’t expect this to be a short process. The documents you provided will be used to make a copy of the land patent for you. 

Many people obtain land patents when they fear that debt might lead to the seizure of property. The patent essentially protects the owner from this possibility — and the owner can never be forced into accepting debt on that property.

2020 Roundup: Overview Of Patent Law Decisions

It was a big year for intellectual property and patent law, in part because we voted out one president and voted in another. President Biden’s policies will certainly affect how these internationally tangled laws work moving forward, but 2020 had bigger impacts that go far beyond the president in office. The United States Supreme Court continues to weigh in on intellectual property law, and these are a few important decisions.

The Federal Circuit was also involved in adapting patent laws to be more consumer-friendly, especially in the computer technology industry. Life science also saw a monumental shift when the Federal Circuit decided that a bite-sized piece of DNA “enriched” in fetal DNA could be legally patented. 

The computer technology case resulted in a significant clarification of the law: commercial practices regarding networking are not eligible to be patented. 

Perhaps not as important a case, but Tom Brady has once again filed for a number of trademarks to protect his “alternative” names. He had formerly requested to trademark the name “Tom Terrific” but was essentially laughed out of court because there was a connection to a half-of-famer named Tom Seaver. 

Courts also ruled that an inter-parties review (or IPR) can be used to challenge certain types of patents, which effectively allows a challenger to fight a competitor for a particular patent via a year-long process in the Patent Office. 

Allen v. North Carolina resulted in a ruling by the Supreme Court that sets the precedent by which Congress should be barred from abrogating a state’s immunity in cases involving copyright infringement lawsuits. This allowed the aforementioned case to proceed to court. Allen was suing the state of North Carolina for using his photos taken during the salvaging of the famous Blackbeard wreck.

And believe it or not…another case led to a Federal Circuit Court of Appeals decision determining that a particular color scheme can be trademarked because it is potentially distinctive to the consumer.

How Does Bankruptcy Affect Your Intellectual Property Rights?

We’ve all been affected by the pandemic in equal parts disbelief in horror. Not all of us have had to deal with the loss of a loved one. Others have lost their jobs or been forced to close down their business for fear of bankruptcy. Bankruptcy filings had already catapulted upward about 120 percent from 2019 levels by August of 2020 — and they weren’t showing signs of slowing down. And it’s bankruptcy that has impacts that are neither seen nor heard.

Here’s how bankruptcy affects your intellectual property rights. Pay close attention if you might be dangerously close to claiming bankruptcy yourself, because having all the facts will help you avoid some of the risks commonly associated with a Chapter 7 personal option.

When filing for either a Chapter 7 or Chapter 11 bankruptcy, a few things happen all at once. Basically, the bankruptcy means that a new “estate” is created. This estate consists of all of your old estate’s assets. This shift means that the resources are defined differently and you’re only partially responsible for paying what you owe (i.e. you’ll pay what you can, but probably not everything). 

The Chapter 7 bankruptcy filing only exists to expedite liquidation of assets to pay creditors. Court generally appoints a trustee to make all this happen in a timely manner — and that trustee controls the new “estate.” Not you.

The Chapter 11 filing is somewhat different. Instead of leaving the debtor in financial ruin, this filing could leave a person on their feet. The same goes for a larger corporation. The debtor has more control over the process, and is allowed to reorganize assets or continue to operate in order to have a better chance to reduce debt over a short period of time. 

There are a few things to keep in mind about bankruptcy and your own rights. First, owning intellectual property commonly results in litigation. Other businesses want what you have, and they’re willing to test the law by taking you to court. But here’s the thing: when you file for any type of bankruptcy, court cases generally get put on hold. There are a number of exceptions, but in general it’s one way to pause a case.

The stay  is meant to prevent “different creditors from bringing different proceedings in different courts, thereby setting in motion a free-for-all in which opposing interests maneuver to capture the lion’s share of the debtor’s assets.”

Perhaps more interestingly is that the debtor still preserves their right to sue. Keep in mind, “There is…no policy of preventing persons whom the bankrupt has sued from protecting their legal rights.” This is a relevant legal matter for some who believe they can game the system — for example, some ballsier corporations have used bankruptcy as a legal gambit to prevent a lawsuit from moving forward only to countersue. They rarely work the way the debtor thought they might. Defendants always preserve the right to defend.

What Are Dr. Salvatore Pais’s UFO Patent Experiments?

Every once in a while we hear about a specific patent that leaves us scratching our heads — in a legal sense, anyway. Not everything can be patented. For example, theories, ideas, laws of nature, etc. None of these things can be patented. They cannot be owned. If you want to patent an “idea” you need to provide the structure for that idea, such as when an author writes a story. The initial concept can’t be owned, but the author owns the story he put into place based on that concept.

If it sounds difficult to understand, that’s because it is. Lawyers and judges have struggled to untangle patent laws since almost the exact moment they were put into law.

So when we hear about a “UFO patent” it’s not surprise that people start wondering: What is that — and can anyone really patent it?

Dr. Salvatore Pais’s body of work contributed to what we now know as the “Pais Effect,” which is a theoretical concept that could one day allow us to generate power for or propel spaceships. Okay, but we already said theories cannot be patented. And they can’t. But Dr. Pais and others have spent countless hours trying to make sense of his High Energy Electromagnetic Field Generator (HEEMFG) experiments. And the HEEMFG isn’t a theory or concept — it’s a structure based on them. That means it can be part of a patent.

And while it might sound like work based on extraterrestrial technology, that’s not the reason it’s called the UFO patent. The Navy adopted that name because the weird science on which it’s based is widely considered to be UFO-like. It’s futuristic. It’s cool. 

Recently, Dr. Pais patented plans for a fusion reactor — and one that could fit inside a car at that. While the HEEMFG experiments have reportedly ended, his next venture could be even more interesting!

How Does Bankruptcy Affect Patent Law and Intellectual Property?

We all have a basic understanding of these concepts: bankruptcy, patent law, and intellectual property rights. Boiled down, bankruptcy means a person or organization can no longer afford to pay their debts. Owning a patent means a person or organization owns the rights to a product or invention. Intellectual property means a person or organization owns the rights to an idea, art, or something else intangible. 

What most of us don’t realize, though, is how interconnected these concepts really are.

Big business bankruptcy is up by about 120 percent in the last eight months. Almost all of these big businesses hold a great number of assets, including intellectual property and patents. These are at least as important as physically assets like infrastructure and land. Section 365 of the US Bankruptcy Code guarantees a debtor the opportunity to perform its financial and service obligations both during and after a successful bankruptcy filings through something called an “executory contract.”

There are other options as well. A debtor might also choose to assign the executory contract to another party or reject such a contract outright. Should the debtor reject the contract, damages must be paid. Only when such a contract is assumed does the debtor need to provide proof to a bankruptcy court that obligations will continue. This is called the “adequate assurance of future performance.”

Chapter 11 bankruptcy therefore means that an organization has transformed into something else entirely, because now that organization will be “owned” by the bankruptcy court. This is important to acknowledge and understand when filing for bankruptcy when IP is held. That’s because there is often a distinction made between “owning” and “licensing” IP. If the owner of an IP licenses it to another party, and the other party becomes swallowed by debt, then the owner might not want to continue licensing to the debtor. This is why bankruptcy filings can cause contractual issues that need to be worked out first.

The court case Lubrizol Enters v. Richmond Metal Finishers, Inc. held that Richmond Metal had the right to reject a license previously made to Lubrizol — even though the license was a critical factor for Lubrizol’s continued business. 

This is one of the reasons why both parties — licensor and licensee — should understand the potential consequences should one party fall into a state of bankruptcy. Contractual obligations for this contingency should always be worked out ahead of time to prepare for potential pitfalls later. Although the aforementioned court case does provide a certain level of precedent, similar cases are almost always determined at the discretion of a judge based on the individual details relevant to that case. 

That means organizations with patents or IP should never assume they know exactly what will happen should a party be forced into bankruptcy. We can’t predict the future — unless it’s already written. That’s why the easiest way to avert disaster before it happens is to provide terms in contractual writing before those disasters are upon them.

China To Impose New Patent Law Amendment in 2021

Chinese legislators and authorities have amended the Patent Law of the People’s Republic of China in 1992, 2000, and 2008 after it was originally conceived in 1985. Now, a new amendment seeks to modernize the code of laws and is set to take effect on June 1, 2021. One country’s patent law tends to reverberate to other countries and the citizens of each, so it’s important to be aware of what these changes might portend if you have patents or intellectual property of your own.

First and foremost, statutory damages for related infractions to patent law will be increased. In addition, a person can now sue for punitive damages as well — which means that a judge can slam a person with additional (and steep) fines if this individual knowingly caused financial harm to the other party or did so through gross negligence. 

Organizations found guilty of violating Chinese patent laws have more to worry about because the China National Intellectual Property Administration can become involved with lawsuits or disputes impact national interests. Chinese intellectual properties are now protected for longer under the law. There are a few other details that won’t likely impact American individuals or companies, but a lawyer can help you sort them out if you feel you might be targeted by Chinese authorities for violating their laws, new or old.

Please take note: statutory damages and punitive damages are still made at the discretion of the courts, but statutory damages have been raised to about $750 U.S. per infraction. That can add up fast if multiple infractions are alleged by the accuser. Also, punitive damages can result in five times the amount of direct damages.

Perhaps the most important thing to keep in mind is this: the burden of proof has been lowered by the strengthening of these Chinese laws, which means an accuser won’t have to try as hard to take someone to court — or win once they get there.

When Is Sharing Files Illegal And How Many People Are Prosecuted?

Music and TV can be expensive. Before subscription services like Pandora, Spotify, Netflix, Hulu, and a dozen other popular providers, you had two options: pay up or download off the internet. Paying up meant spending at least a dollar for most songs — and for most of us the consequence of that was a very small library at very large cost. But downloading off the internet meant potentially breaking the law. Not everyone even knows what they’re doing is illegal. Believe it or not, the peer-to-peer sharing laws are relatively black and white. There’s not much space for interpretation in the law.

First and foremost, file sharing is legal in all fifty states. It’s only illegal when that shared material is under copyright law. Since most popular content is still under copyright law, obviously most of this activity is illegal. In most countries, downloading a movie, sharing copyrighted songs, or downloading copyrighted TV shows or programs would be considered illegal — so long as the person downloading or receiving doesn’t already own a legally purchased copy of the product in question.

Most people inquire whether or not the programs that allow people to share these files easily are legal. There’s nothing wrong with downloading or using programs like BitTorrent or the outdated Vuze. It’s how you use them that could land you in hot water.

Fines for an illegally downloaded, copied, or shared piece of copyrighted material can be steep. Considering most people who do this (and there are hundreds of millions of people who do this), that means getting caught and prosecuted can mean life-changing fines or civil liabilities. The worst case scenario is prison time, but this is extraordinarily rare.

For those caught and forced to pay the penalties, it can lead to bankruptcy. Even in the rare event it doesn’t completely financially ruin a person, they can expect wages to be garnished for years, possibly decades. A wage garnishment lawyer probably won’t be able to make a difference either, because the law is so black cut and dry (although it’s always worth a try).

The good news is this: prosecution for file sharing is rare. Once upon a time, companies would be more likely to prosecute or sue a person who was caught — but they’ve mostly realized two important facts: One, it won’t make a difference. Two, most people who grew up in the generation guilty of this crime are more likely to spend more on art anyway — which means it could actually hurt a company rather than help it. 

One of the last people to face prosecution was Jammie Thomas-Rasset, a Minnesota woman who faced a penalty of $1.5 million for sharing at least 1,700 music files. The action that cost her over a million dollars only concerned 24 of those songs. An appellate court eventually reduced the amount to $54,000 — which for most Americans would still be considered debilitating. 

Everything You Didn’t Know About Intellectual Property

Intellectual Property (or IP) is one of the most confusing arenas of law — and many of us violate those laws on an almost daily basis without even realizing it! This is because the simple sharing of a file online can be considered IP theft. How many times have you sent a purchased song or video to a friend or family member? How often have you received one? How often have you downloaded one? These are all examples of IP theft. Here are some other tidbits you might not know.

Here’s some bad news: even if you didn’t know you were violating IP law, you can still be prosecuted for it. This phenomenon is called “innocent” infringement and invites legal action the same as intentional infringement.

IP laws vary country by country, but IP rights are dependent on where the IP was established. For example, U.S. laws will only protect properties in the United States. If you own a specific IP and plan to sell it in more than one country, you need to know the laws in every single one! There are some politicians trying to create a worldwide standard to make it simpler to regulate and prosecute individuals accused of violating IP law.

Do you know the difference between an owner and an author? An owner is the one who legally owns and has the right to sell a specific IP. The author is the one who created it, so he or she usually owns it — but sometimes when an IP is worth millions, an author will be quick to sell it to a different owner.

Copyright protection expires 70 years after the original author passes away, even if there is a new owner. Patents are only valid for twenty years — which is why we generic versions of drugs, but only after two decades have passed. The only trademarks that live in perpetuity are those used commercially.