HBO’s ‘Silicon Valley’ tackled an issue that’s all too familiar to startups: The threat of frivolous patent litigation. Even after a recent Supreme Court win against patent trolls, startups must remain engaged in patent reform.
Trump Asks Supreme Court to Revive Travel Ban. The Trump Administration has petitioned the Supreme Court to revive his immigration travel ban after yet another court blocked the effort last week. In a 10-3 ruling, a federal appeals court in Richmond, VA upheld an earlier Maryland ruling that suspended key parts of the Executive Order, which would would prevent entry for immigrants from six Muslim-majority countries and ban refugees from around the world. In response, President Trump has filed an appeal and asked the high court to temporarily lift the freeze. Trump will need the votes of five of the nine justices to stay the lower court orders and just four votes to add the case to the court’s docket. The startup community has pushed back against the President’s ban, with more than 300 startups and investors calling the it “morally and economically misguided” in a February letter to the President. We’re tracking.
Supreme Court Delivers Blow to Patent Trolls. The Supreme Court delivered a blow to patent trolls this week by unanimously reversing the Federal Circuit’s decision in TC Heartland v. Kraft Foods Group Brands LLC. The high court ruled that defendants in patent cases can only be sued where they are incorporated or have a regular and established place of business. The decision will make it significantly harder for patent trolls to file lawsuits in jurisdictions that patent-friendly but otherwise unrelated to the claims at issue—most notably the Eastern District of Texas, where almost forty percent of patent cases were filed last year. In a statement reacting to the ruling, Engine Policy Director, Rachel Wolbers, noted, “The Supreme Court’s decision in TC Heartland is another important step to preventing abusive patent litigation tactics that disproportionately impact startups...While this ruling is a significant victory in the in the fight against patent trolls, Congress must continue to work to protect startups from abusive patent litigation...We are thankful for today’s ruling, but know there is much more work to be done.”
Today, the Supreme Court delivered a blow to patent trolls by unanimously reversing the Federal Circuit’s decision in TC Heartland v. Kraft Foods Group Brands LLC. The high court ruled that defendants in patent cases can only be sued where they are incorporated or have a regular and established place of business. The decision will make it significantly harder for patent trolls to file lawsuits in jurisdictions that patent-friendly but otherwise unrelated to the claims at issue—most notably the Eastern District of Texas, where almost forty percent of patent cases were filed last year.
On Tuesday, Chairman of the House Judiciary Committee, Congressman Bob Goodlatte (R-VA) revealed the committee’s top tech priorities for this Congress. Among the issues he hopes to address are encryption and surveillance, as well as high skilled immigration. On immigration, he suggested that too many green cards were being given to family members of current U.S. residents, instead of going to skilled laborers. He told reporters that his goal was to “find a balanced solution to increase the high-skilled talent pool to promote job growth through visa and green card reforms,” and to protect “job opportunities for similarly qualified Americans.”
Today, Engine hosted Austin Meyer, the director of the new documentary “The Patent Scam,” at the Capitol Hill Visitor Center. The screening and subsequent discussion with real victims of patent litigation abuse demonstrated the extent that the U.S. patent system is failing to protect small businesses and startups from patent trolls.
On Wednesday morning, more than 800 startups, innovators, investors, and entrepreneurial support organizations from all 50 states joined Engine, Y Combinator, and Techstars in sending a letter to Federal Communications Commission (FCC) Chairman Ajit Pai urging him to protect a free and open internet. As we note in the letter, the success of America’s startup ecosystem depends on strong, enforceable net neutrality rules. Any effort to roll back these rules would allow for discrimination and impede entrepreneurs’ ability to grow their companies, reach customers, and compete with incumbents. Rather than dismantling the existing net neutrality framework, signatories called on Chairman Pai to “focus instead on policies that would promote a stronger Internet for everyone,” such as removing unnecessary barriers to construction of new networks. Read the full letter and add your company’s name here.
On Tuesday afternoon, President Donald Trump signed an executive order reiterating the Administration’s policy to buy and hire American. On the ‘Hire American’ side, the EO directs federal agencies to evaluate the various programs that allow foreign workers to enter the United States, with a particular focus on the H-1B visa program. While the EO will not have a direct, immediate impact on the H-1B program, it brings new scrutiny to a visa category relied on heavily by the tech and startup communities. In a statement responding to the EO, Engine Executive Director, Evan Engstrom, called on the the Administration to consider the concerns of the startup community when reviewing and reforming the program: “[I]t is essential that they take into account the economic realities of the startup ecosystem and work to craft reform policies that do not inadvertently make it harder for startups to hire the talented workers they need.”
H-1B season kicked off on Monday, and while the the White House missed the opportunity for a larger overhaul of the program before the lottery opened, the Administration did slip in a few changes at the last minute that have made the already chaotic process of applying for H-1Bs even more frenzied. Late last Friday, U.S. Citizenship and Immigration Services (USCIS) quietly issued a policy memo indicating a more rigorous vetting process for computer programmers. While the changes are mostly cosmetic in nature (USCIS has maintained that the guidance is a clarification of existing policy, not a “policy change”), the agency also announced on Monday that it would be increasing the number of targeted site visits to crack down on H-1B abuse and fraud. The same day, the Justice Department issued a strong warning that employers seeking H-1B visas must not discriminate against American workers. On their own, each of these changes is arguably meant to target outsourcing firms and abuse of the system, not technology companies (most of whom reserve their visas for more complicated, higher paying roles that cannot be filled by U.S. workers). But taken together, they indicate an intentional effort by the President to deliver on his campaign promise to “end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program.” We’re tracking.
Engine Examines the Limits of Filtering. In a congressional briefing on Tuesday, Engine Executive Director, Evan Engstrom, and Princeton University professor Nick Feamster introduced the report they co-authored exploring various content filtering technologies and the impact that their mandatory application could have on startups. Feamster, a computer scientist, explained the primary modes of filtering and each of their shortcomings in identifying copyright infringing material. Engstrom addressed the implications for startups if policymakers moved to require the use of these technologies. Not only would companies suffer because of the limited ability of the current methods to accurately filter infringing content, he said, but they would also be unable to pay the extremely high price required for full-scale operation of the filtering technology. The full report, which elaborates on the speakers’ remarks, can be found here.
Following last year’s dramatic removal of Maria Pallante as Copyright Register, the struggle between Congressional leaders and the Librarian of Congress, Carla Hayden, continues. Despite the fact that Hayden has been clear about her intention to appoint the new Register, (as current law grants her the authority to do), top Republicans and Democrats introduced legislation yesterday that would make the position President-appointed and Senate-confirmed. This shift comes at a time when stakeholders across the board are calling for modernization of the Copyright Office, especially the digitization of records in order to simplify the determination of copyright holders. Members of the House and Senate Judiciary Committees met with Hayden earlier this month in an attempt to hold off on her nomination, however she later wrote them to tell them she planned to move forward with the process in order to ensure an “efficient and effective Copyright Office to serve Congress and the wide variety of stakeholders.” We’re tracking.
Engine released a report on Wednesday highlighting the ways in which startups are capitalizing on Big Data to solve some of society’s biggest challenges. The paper also offers insights for policymakers seeking to foster innovation and social transformation while maintaining sufficient protections for the American public. To celebrate the report’s publication, Engine hosted a briefing on Capitol Hill, which was headlined by Reps. Blake Farenthold (R-TX) and Derek Kilmer (D-WA). They were joined by a distinguished panel of policy analysts and startup leaders from ITIF, FarmLogs, and LendUp. Panelists explained how the convergence of multiple datasets is really what drives insights, even more than the size of a single dataset. The also argued that the data generated and shared by the government should be high quality, interoperable, and widely available to entrepreneurs.
After almost five years of legal volleying, the U.S. Supreme Court finally issued a decision in the highly anticipated Apple v. Samsung design patent case late last year. On Tuesday, Dec. 5, the court delivered a unanimous decision in favor of Samsung, finding that damages for design patent infringement may be limited to revenues attributable to a component of an article of manufacture rather than profits from the entire article. While this is an important victory for startups and innovators—from global corporations to inventors toiling in garages—courts must still work to provide the guidance and clarity necessary to prevent bad actors from abusing the patent system to the detriment of innovation. And they have a new opportunity to do so: On Feb. 7, the U.S. Court of Appeals for the Federal Circuit took a significant step in that direction by remanding the Apple v. Samsung case to the Northern District of California court.
Very, Very Strange Times at Uber. Uber was thrown into a human resources and public relations nightmare this week after Susan Fowler, a former engineer at the ride-sharing giant, published a damning blog post recounting sexism, sexual harassment, and administrative negligence during her time at the company. The lack of diversity in the technology industry is well-documented, and while top executives at most Silicon Valley companies (including Uber) have acknowledged the problem and pledged to fix it, accounts like Fowler’s call into question whether those pledges are merely talk. The company’s CEO Travis Kalanick responded to the post by calling for an “urgent investigation” into the allegations, and tapped former Attorney General Eric Holder, board member Arianna Huffington, and the company’s Chief Human Resources officer, Liane Hornsey to lead the probe. However, some have called this approach into question, noting that the three individuals selected are all company insiders. Policymakers on the Hill have also responded to the story, calling on tech companies to do more to embrace diversity. Only time will tell how Uber will recover from this crisis, but in the meantime, there’s always Lyft.
On Tuesday, more than 200 startups and investors from across the country joined Engine and the National Venture Capital Association (NVCA) in sending a letter to President Trump opposing his Executive Orders on immigration—both the immigration ban EO signed on January 27th and the draft EO that would roll back existing worker visa and parole programs. In a statement, Engine Executive Director Evan Engstrom noted that “Beyond the obvious harm these policies would have on refugees, immigrants, and the U.S.'s standing in the world community, we wanted to make sure the President understood that these policies would have a major detrimental impact on entrepreneurship and innovation.” Signatories ranged from early-stage startups like NourishWise in Nashville, TN and WorkHound in Des Moines, IA, to later-stage companies like Pinterest, General Assembly, and Vimeo. The letter was also signed by almost 100 individual investors, including Ron Conway, Dave McClure, Venky Ganesan, Jeff Clavier, and William H. Draper III.
In a startling move after only one week in office, President Trump signed an Executive Order last Friday limiting the movement of immigrants—including lawful visa holders—and refugees from seven predominantly Muslim countries into the U.S. In a statement, Evan Engstrom, Engine’s executive director, said “The executive order is both morally and economically misguided, and sets a dangerous precedent that signals to the rest of the world that America is no longer open for innovation.” Hundreds of companies and organizations released statements of their objection, including Google, Apple, AirBnB, Microsoft, the Internet Association, CCIA, CTA, and TechNet. As immigrants play an essential role in building and contributing to the success of American startups, we urge our fellow members of the startup ecosystem to sign our letter to President Trump to express their opposition.
This week marked the five year anniversary of the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) protest—a coordinated blackout of more than 50,000 websites meant to push back against the online censorship that the bills threatened. As Engine Executive Director Evan Engstrom explains in a new blog post, “the bills themselves would have allowed the government, at the behest of copyright owners, to blacklist and functionally deny access to websites accused of hosting infringing content, undermining the fundamental architecture of a free and open internet.”
Under Director Michelle Lee, the Patent Office has made real strides toward fixing patent quality. While much work in that area remains to be done, we are encouraged by the steps she and her team have taken and are pleased that she will remain in her role in the incoming Administration so that this important work can continue. Startups in particular rely on a well-functioning patent system, and under Director Lee's leadership, the Patent Office has welcomed the startup community to play a role in that debate. We look forward to continuing working with her to ensure that that the patent system promotes rather than hinders innovation.
The Supreme Court’s December 2016 decision in Apple vs. Samsung reversed a dangerous lower court decision that would have allowed patent plaintiffs to claim the total value of a product containing an allegedly infringing design feature, even if that design feature only provides a small amount of the product’s value. While total profits awards may arguably have been more plausible in an age when devices were less complicated and the design of the object constituted a significant portion of its value, the complexity of modern devices renders total profits awards for design patent infringement particularly illogical.