Six questions for an intellectual property market at a critical juncture
It’s a fascinating time to take over as I AMeditor-in-chief. Having covered the IP space from Asia for the past seven years, I never imagined that I would see the United States government weigh in on TRIPS exceptions alongside India and China, while the major European economies protested.
Whatever you think, US Trade Representative Katherine Tai understood one thing in her brief, vague statement welcoming the WTO negotiations: these are truly “extraordinary times” … and patent holders are really getting together. in uncharted waters.
The TRIPS debate is just one of the many reasons right holders are currently facing so many great uncertainties. As a journalist covering these issues, I can say with certainty and with great pleasure that there are many interesting stories to come for I AM readers.
Here are some of the big themes that I will be paying attention to in the coming months.
How will the Biden administration’s TRIPS movement reverberate?
The first-order effects are quite clear: a negotiation process that seems to drag on for years and in the meantime a symbolic blow to intellectual property rights that casts a shadow over companies working in areas that could be directly affected. .
What’s more interesting is how the movement will bleed into other areas of intellectual property that have nothing to do with covid-19. Our editor-in-chief Joff Wild brought up several in a column earlier this month. A big question is how this will affect the appointment and confirmation of a USPTO director. Will this narrow Biden’s choices for the top job, perhaps setting the tone for an administration that is skeptical about intellectual property? Or will the rejection of industry groups and major legislators lead to a decline and / or initiatives in other areas of intellectual property designed to reassure innovators?
Will this decision be remembered as a radical change in global intellectual property policy? Or just a wrong note in the otherwise still pro-IP American song?
Will developer pools be the next big SEP debate?
The critical FRAND issues at the moment – a series of conflicting anti-prosecution injunctions, detailed licensing issues referred to the CJEU by the Düsseldorf regional court – are far from resolved. But there are a lot of other issues on the horizon. More and more I hear of an effort on the part of SEP implementers to form their own “pools” to conduct joint negotiations with patent holders. When I interviewed Xiaomi’s Paul Lin last December, he suggested that video directors should come together and speak with one voice when it comes to reasonable pricing. Notably, he preceded that by saying, “I’ll be careful here because I’m not an antitrust lawyer.” What commodity companies envision as a full-fledged pool, major licensors are likely to characterize a cartel of buyers. Nevertheless, it is an idea which is debated in Europe and also in Japan. This could be the next big intellectual property issue to come before competition regulators.
Are the great verdicts of the American jury here to stay?
U.S. district courts have produced awards for patent damages over the past year, including the $ 2.18 billion awarded to VLSI against Intel and the $ 1.9 billion won by Centripetal against Cisco. There are many factors at play here – litigation funding has raised the bar for plaintiffs and made damages levels more important than ever; and we are seeing new and more sophisticated calculation methods succeeding in juries. As to whether these rewards have a lifespan, there are two sides to the question. Will they continue to emerge in the first instance, especially the crowded role of Judge Alan Albright in West Texas, which has already produced the VLSI result? And, of course, how many will survive the scrutiny of the Federal Circuit Court of Appeals?
Are mega patent agreements about to come back?
Confirmation that the Blackberry patent portfolio is on sale will test the market’s appetite for the type of mega-transaction that we haven’t seen in some time. It also appears that key parts of LG Electronics’ portfolio are open to offerings. The prospect of migrating large patent legacies is always a good story, but I’m also interested in new transaction structures. One of the most interesting deals so far this year has been the settlement of a long-standing dispute between SK Hynix and Netlist, which involved a chip supply deal – a valuable asset amid a shortage of semiconductors that no one expects to solve soon. What other new approaches to intellectual property agreements might result from the demands of this very strange business environment in which we find ourselves?
Can Huawei become a major player in licensing?
A surprising story of I AMChina’s editor-in-chief Bing Zhao last month flew somewhat under the radar. Huawei announced that it has reserved more than $ 600 million in IP licensing revenue in the first quarter of 2021. The company has never provided quarterly updates on this part of its business, so its decision to do so now. is a major statement of intent. However, there were no further details on how much Huawei hopes to earn in the future. The big quarter may just be an anomaly facilitated by a big lump sum payment. But the transformation of Huawei’s business model by pulling out of consumer electronics while maintaining its investment in wireless research could have a significant impact on the licensing space.
Is China seriously considering cleaning up patent filings?
It is amazing how quickly things can change in China. After years of record growth in patent applications, the CNIPA appears to have unleashed a significant crackdown on questionable filings between late 2020 and early 2021. The office has uncovered six “abnormal” behaviors it is focusing on and pointing to. set up a task force to use computer and human reviews to flag suspicious submissions. Hundreds of thousands of filings could be affected by this aggressive effort to turn “quality over quantity” from words to actions. Aaron Wininger, a keen observer of the Chinese patent office, reports that his medium-term budget foresees potentially huge declines (up to 50%) in national patents. It would be unthinkable in any other jurisdiction, but maybe not in China. This story deserves to be watched.
These are just a few of the things on my radar. If you think I missed the story of the year above, please feel free to email me at the address below!