by Dennis Crouch
New data from the USPTO shows that the amazing transformation in patent inventorship continues: the average number of inventors per utility patent has reached 3.2 in 2024, nearly double the 1.7 inventors per patent seen in 1976. This steady rise in team-based inventing reflects fundamental changes in how innovation occurs and how the patent system operates.
The updated patent claim count data through 2024 reveals a continuing trend toward standardization in claim counts, with both the median and mean hovering around 16-17 claims per patent. The perhaps the most striking feature of this longitudinal data is the dramatic reduction in variance – from a standard deviation of about 15 claims in the mid-2000s to just about 7 claims today. This compression suggests that patent drafting has become increasingly standardized, likely driven by USPTO fee structures that discourage exceeding 20 claims and the professionalization of patent prosecution practice that pushes up on the claim count. Particularly notable is the steady rise in the median claim count from 7 claims in the 1970s-80s to today’s 17 claims, while the mean has shown more modest growth over the past decade — and a drop from the highs in the early 2000s where many patentees were seeking jumbo patents with hundreds of claims.
Read more here:
by Dennis Crouch
Recent patent prosecution data reveals a striking trend: the percentage of utility patents containing "non-transitory" software claims continued to increase -- from virtually zero 15 years ago to nearly 22% in 2024. This dramatic rise illustrates both the central role of software in our patent system and the peculiar formalistic requirements that have emerged around software patent eligibility under 35 U.S.C. § 101.
The story behind this trend begins with
by Dennis Crouch
In my view, some of the weakest anti-AI copyright claims have fallen under 17 U.S.C. § 1202(b)(1) – an element of the Digital Millennium Copyright Act (DMCA) that prohibits intentional removal or alteration of copyright management information (CMI). The statute broadly defines CMI to include not just copyright notices, but also titles, author information, owner information, terms of use, and other identifying information conveyed with copies of works. Any violation also requires proof that the CMI-remover had “reasonable grounds to know” that such removal would enable or conceal copyright infringement.
In Raw Story v. OpenAI, the online news organization alleged that OpenAI violated § 1202(b)(1) by removing copyright management information (CMI) from thousands of their news articles when incorporating them into training datasets for ChatGPT. Notably, the plaintiffs did not bring direct copyright infringement claims, instead focusing solely on alleged CMI removal. The articles in question were published online with author, title, and copyright information, which plaintiffs claimed OpenAI stripped away when creating its training sets. While OpenAI has not published the contents of these training sets, plaintiffs relied on “approximations” suggesting their articles appeared without CMI. They argued this evidenced intentional CMI removal, reasoning that if ChatGPT had been trained on articles with intact CMI, it would output such information when generating responses.
The most recent news in the case is that S.D.N.Y. Judge Colleen McMahon has dismissed the claims brought by Raw Story (and AlterNet Media) — holding that the plaintiffs lacked Article III standing to pursue the case.
by Dennis Crouch
With Donald Trump’s reelection, leaders within the Biden administration will be stepping down over the next two months. USPTO Director Kathi Vidal has announced her departure from the agency, effective in December 2024. Deputy Director Derrick Brent will serve as Acting Director during the transition period. Vidal’s announcement indicates that Brent will stay in the position until Trump’s replacement is confirmed. Of course, that position serves at the pleasure of the president and so could change at any point.
Brent’s offer to stay-on after January 20, 2025 fits with President Biden’s resent statement that the American people deserve a peaceful and orderly transition. In her resignation announcement letter to colleagues at the USPTO, Vidal asked that those who remain “stand ready to work with the incoming administration’s team.” This approach is exactly what is needed and fits the USPTO’s tradition of maintaining operational continuity through political transitions. (more…)
by Dennis Crouch
I’m excited to share a new article I recently published examining the relationship between intellectual property rights and artificial intelligence regulation, recently published in Volume 89, Issue 3 of the Missouri Law Review. Before diving into the substance, I want to express my sincere gratitude to the Missouri Law Review editors and staff, not only for their exceptional editorial work on this article but also for their tremendous efforts in organizing our March 2024 symposium that I co-organized on “AI and Society: Government, Policy, and the Law.” The symposium brought together dozens of leading scholars to explore the pressing challenges of AI governance, and those discussions helped shape many of the ideas presented in the piece.
The article builds on foundational work of scholars, including Amanda Levendowski, who has explored how copyright law can address AI bias, as well as Mark Lemley and Bryan Casey, whose research on “fair learning” has shaped our understanding of AI training and copyright. My article argues that we should be cautious about viewing IP as a primary regulatory tool. (more…)
by Dennis Crouch
The Supreme Court currently has before it a unique opportunity to address a longstanding problem with the Federal Circuit’s practice of issuing no-opinion summary affirmances in patent cases. The recently filed ParkerVision petition presents a compelling argument that the Federal Circuit’s heavy reliance on Local Rule 36 judgments violates 35 U.S.C. § 144’s requirement that the court “shall issue… its mandate and opinion” when deciding appeals from the Patent Office. This violation has become particularly acute given the surge in appeals from Patent Trial and Appeal Board (PTAB) decisions in recent years. ParkerVision vs. TCL Indus., 24-518. While appellate opinions serve fundamental interests of human dignity and the rule of law — interests that take on special significance as here when no other Article III court has addressed the dispute — this case presents an even clearer problem because Congress has specifically mandated through Section 144 that the Federal Circuit ‘shall issue’ an opinion in appeals from USPTO decisions.
The ParkerVision petition arises from the Federal Circuit’s summary affirmance of PTAB decisions that invalidated the patentee’s claims related to wireless communication technology. After TCL and LG Electronics successfully challenged the patents via inter partes review (IPR), ParkerVision appealed to the Federal Circuit raising procedural questions about whether the PTAB improperly relied on arguments that had been waived. Rather than addressing the merits of the arguments, the Federal Circuit instead disposed of both appeals without any opinion and rather simply an “AFFIRMED” judgments under Rule 36, providing no explanation for its decisions.
The question presented thus asks:
Whether 35 U.S.C. § 144, which requires the Federal Circuit to issue ‘opinion[s]’ in PTAB appeals, is a reason-giving directive that prohibits the Federal Circuit’s practice, under Federal Circuit Rule 36(a), of summarily affirming PTAB decisions without issuing opinions.
ParkerVision vs. TCL Indus., 24-518 (petition for writ of certiorari).
More reading:
Jason Rantanen, Missing Decisions and the United States Court of Appeals for the Federal Circuit, 170 U. Pa. L. Rev. Online 73 (2022)
I previously wrote about the Federal Circuit’s FRAND international injunction decision in Ericsson v. Lenovo, but also invited Prof. Jorge Contreras to provide his insight. Contreras is one of the world’s leading experts on FRAND litigation and standards-essential patent licensing. His analysis of the Federal Circuit’s decision in Ericsson particularly highlights the court’s new limits on injunctive relief for FRAND violators and suggests renewed U.S. court engagement in global rate-setting disputes. — Dennis Crouch
= = =
Guest Post by Professor Jorge L. Contreras
On October 24, 2024, the Court of Appeals for the Federal Circuit (No. 24-1515, 2024 U.S. App. LEXIS 26863) cleared the way for Lenovo to seek an antisuit injunction against Ericsson in the parties’ global FRAND litigation. In doing so, it established important precedent for cases involving standards-essential patents.
Background
The case stems from the dispute between Ericsson and Lenovo over licenses to their respective portfolios of patents essential to the 5G wireless telecommunications standards (standards-essential patents or SEPs). Under the applicable rules of the European Telecommunications Standards Institute (ETSI), each of the parties committed to grant licenses under its SEPs to manufacturers of standardized products on terms that are fair, reasonable and nondiscriminatory (FRAND). As the parties, after years of negotiation, were unable to agree on the FRAND royalties for a cross-license of these SEPs, they each initiated litigation in various jurisdictions including the United Kingdom, Brazil, Colombia, the US International Trade Commission and the U.S. District Court for the Eastern District of North Carolina (EDNC). In the EDNC, each party accused the other of infringing its 5G SEPs and breaching its contractual FRAND obligations to ETSI.
In late 2023, Ericsson obtained injunctions against Lenovo’s sale of 5G-enabled phones in Brazil and Colombia. In response, Lenovo petitioned the EDNC for an antisuit injunction (ASI) (technically, a temporary restraining order), which would have barred Ericsson from enforcing its Brazilian and Colombian injunctions against Lenovo until the resolution of the FRAND dispute in the U.S. court. In February 2024, the EDNC denied Lenovo’s motion for an ASI (No. 5:23-CV-00569-BO, 2024 U.S. Dist. LEXIS 26060, 2024 WL 645319). Lenovo appealed to the Federal Circuit, which reversed and remanded. (more…)
by Dennis Crouch
Miller Mendel, Inc. has petitioned the Supreme Court to review a Federal Circuit decision invalidating its background check software patent in a case that raises questions about both judicial independence and patent eligibility standards. The petition comes after both the district court and Federal Circuit found Miller Mendel's US Patent No. 10,043,188 ineligible under § 101 as directed to an abstract idea.
The Patent and Technology at Issue: The '188 patent covers a software system for managing pre-employment background investigations. The claimed system automates many aspects of the background check process, including collecting and storing applicant information, managing communications with references via email hyperlinks, and automatically generating suggested lists of law enforcement agencies based on an applicant's residential address. Miller Mendel accused the City of Anna police department (northern Texas) of infringement through its use of Guardian Alliance Technologies' background check platform. The City successfully moved for judgment on the pleadings arguing patent ineligibility under § 101. The court characterized the claimed automation features as merely implementing conventional background check steps on generic computer components.
Three Questions for Supreme Court Review
The petition, filed by Kurt Rylander of Rylander & Associates, presents three questions that go to fundamental issues in patent law and judicial administration:
1. Constitutionality of Removing Article III Judges
The most striking issue challenges the Federal Circuit's effective removal of Judge Pauline Newman from judicial duties for refusing to submit to mental health evaluations. The petition argues that the Federal Circuit's self-policing usurped Congress's exclusive constitutional authority to remove Article III judges through impeachment.
by Dennis Crouch
Mark your calendars for January 8-11, 2025, as the IP & Ski Conference returns to the slopes of Vail, Colorado. This unique conference combines some of the most engaging intellectual property speakers with world-class skiing — all at the ski-in/ski-out Grand Hyatt Vail. (Although I often stay at the Minturn hostel to save some money). But, where else can you discuss the latest IP law developments with leaders in the field while riding a chairlift up to 11,500 feet. [I’ll note that every year a good number of folks spend the day with non-skiing activities.]
This year’s program features an extraordinary lineup of speakers, including Judge Kara Stoll from the Federal Circuit, Judge Alan Albright from the Western District of Texas, and top in-house counsel, including from Microsoft, Cisco, and Novartis. I’ll be part of two sessions on Saturday morning, one focusing on AI’s impact on patent practice and a review of 2024’s most significant patent cases. Prof. Jeanne Fromer of NYU will deliver the trademark review. (If you have not encountered her, Prof. Fromer is amazing). (more…)
Our guest author today is a very bright high school student, Kavya Gundlapalli, who is considering a career in law. – DC
Guest Post by Kavya Gundlapalli*
As America heads toward the 2024 presidential election, artificial intelligence (AI) has emerged as a surprising campaign flashpoint. From voter targeting to political advertising, AI is reshaping how candidates connect with voters – and exposing a divide over how this powerful technology should be governed. A partisan split in this area mirrors broader ideological differences about government regulation, with Republicans championing market freedom and innovation, while Democrats tend to advocate for the same, but with stronger federal oversight and ethical guardrails. (more…)
by Dennis Crouch
The Federal Circuit today issued two related opinions in long-running patent litigation between Cellspin and various technology companies including Fitbit, Nikon, Nike, and others. The decisions highlight important procedural issues in patent litigation while also addressing the timing requirements for judicial recusal motions. Collectively, they highlight the reality that the outcome of complex civil litigation often turns on procedural issues.
