2019 was a big year in IP, with major developments in technologies like AI and Big Data that will impact IP law and policy for years to come, and U.S. federal courts sending mixed signals on patent rights in several important rulings. So as we begin 2020, let’s take a closer look at three topics that we predict will be hotly debated by IP practitioners and policy makers this year:
IP hits the road with 5G
A key element in the eventual arrival of fully autonomous vehicles will be the 5G technology that allows a car, truck or bus to remain in continuous communication with the smart road on which it travels, with other vehicles, and with a ubiquitous navigation infrastructure. Meet “vehicle-to-everything,” or V2X, communication.
It will be a lightning-fast communication system in which the roads themselves broadcast current conditions so that vehicles can prepare and respond to potential hazards. One of the current roadblocks to self-driving vehicles — up-to-the-minute, accurate digital maps — will be overcome by navigation streamed from satellite-borne systems. Vehicle-to-vehicle communication should, ultimately, reduce collisions and traffic jams.
Each piece of this interconnected puzzle is likely to be controlled by proprietary software. To make travel safe and trouble-free, the quality of these applications will be paramount and will represent a tremendous licensing opportunity for owners of the most robust and reliable software solutions.
Right now, however, there are lots of unanswered questions. Who will coordinate, purchase and maintain all of the puzzle pieces? Private businesses? Municipal, state, or federal governments? And, will governments finally become more responsive to the needs of software IP holders?
Ecommerce & the evolution of counterfeit goods
According to a 2019 NPR/Marist poll, 76% of U.S. adults (aged 18+) shop online at least once a year – and 25% of those surveyed made monthly online purchases. Clearly, buyers love the benefits of shopping online: there’s no need for travel, it’s easy to find cost comparisons and product reviews, and there are just so many choices! But that’s actually part of a growing problem.
The tremendous growth of ecommerce has provided a lucrative playing field for the sale of counterfeit goods in the United States. According to the U.S. General Accounting Office (GAO), approximately $1 billion in fake products is sold online every day. As part of their research, the GAO purchased a number of name-brand merchandise pieces online — including Nike Air Jordans, Yeti travel mugs and Urban Decay cosmetics — and found that 43% of them were fake.
Tania Clark of the Chartered Institute of Trademark Attorneys tells Raconteur, “Those selling fake goods are very innovative. They often try to escape censorship by copying a logo, but not the brand.” These products steal value from genuine brands, adding insult to financial injury.
Policing the theft of intellectual property by bootleggers is a non-stop international game of whack-a-mole that’s a headache, and expensive, for IP holders and ecommerce platforms alike.
Clark says, however, that a sense of partnership between IP holders and retailers is starting to emerge. “Our clients, who range from small businesses to multinationals, are telling us that thanks to a collaborative approach around IP protection involving both brands and the ecommerce platforms, it’s becoming much harder for counterfeiters to flourish.”
Amazon, for one, released Project Zero earlier this year – a machine learning program that continuously scans Amazon stores and proactively removes suspected counterfeit products. Project Zero also contains a self-service counterfeit removal option for authorized brands, which means they no longer need to file a report with Amazon and wait for an answer. Alibaba also has a program in place to take down fake listings within 24 hours. We expect and hope to see a growing shared commitment to fighting bootlegging between IP holders and ecommerce platforms in 2020.
Is software finally getting its IP due?
When it comes to intellectual property protection, computer software was late to the party. The concepts underlying IP, after all, date back almost 300 years, long before even the concept of software existed. The general thinking, says WIPO, is that “computer programs should be protected by copyright, whereas apparatus using computer software or software-related inventions should be protected by patent.”
Even with copyrights, however, there remain significant unknowns and contradictions. Using the U.S. as an example, Section 102(b) of copyright law states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” This list almost perfectly describes software.
A dispute coming before the U.S. Supreme Court now, however, may help clarify things. At issue is the multi billion-dollar claim by Oracle that Google copied 11,500 lines of computer code from Oracle’s Java application programming interface (API) and incorporated it in Google software. Oracle asserts this action infringes on and devalues the company’s copyright of Java. A Federal Circuit court agreed, but Google has successfully petitioned the Supreme Court to revisit that ruling.
While this is by no means a universally lauded decision, it nonetheless provides the Court an opportunity to clearly rule on two key IP questions: (1) Can a software interface be copyrighted? (2) Does the incorporation of copyrighted software into new software constitute fair use?
Obviously, if computer software isn’t copyrightable, then Oracle has no right to seek restitution or remedy, and the Supreme Court would be on record as definitively stating that software is not copyrightable. The fair use question is secondary, and it remains to be seen if the Supreme Court will be able to provide universally applicable guidance on the fair use of software. It’s also possible that the ruling will be confined to the specifics of this case, and thus less helpful as precedent. Either way, it’s a case well worth watching; Dennis Crouch on PatentlyO said it could be “the biggest patent case of the year” in 2020.