Consultation: Ofcom to Auction More Spectrum for 4G and 5G Mobile Use

Ofcom has announced its intention to auction the upper block of 1.4 GHz band (1492-1517 MHz) for 4G and 5G mobile use. It expects that further deployment of the upper block of the 1.4 GHz band will help improve the performance of mobile services, particularly in areas where coverage is patchy, such as some indoor areas and in remote parts of the UK. To avoid potential disruption to Inmarsat satellite receivers on board maritime vessels and aircraft, Ofcom is also proposing to limit the power that mobile networks can transmit around certain ports and airports for an initial period, relaxing this limit later on.

To award the 1492-1517 MHz spectrum, Ofcom plans to use a sealed-bid, single round auction format, with a ‘second price’ rule – where winning bidders pay fees based on the second highest price bid.

Ofcom’s proposals (including a draft license template) are available here and any interested party can provide comments until 25 April 2025. Ofcom also intends to consult separately on its competition assessment for this award once any spectrum trades, which are being considered as part of the merger between H3G and Vodafone, have been completed. Potentially interested parties should bear in mind the potential risk of antitrust liability arising from the exchange of competitively sensitive information in connection with auctions of this kind (for a useful refresher, our Antitrust Guidelines for Communications Between Competitors in Spectrum Auctions are available here).

Copyright Office: Copyrighting AI-Generated Works Requires “Sufficient Human Control Over the Expressive Elements” – Prompts Are Not Enough

In January 2025, the Copyright Office released Part 2 of its anticipated three-part series on copyright and artificial intelligence (AI). The report discusses copyrighting works that include AI-generated content and provides guidance for applicants seeking protection of such work.

Part 2 emphasizes the importance of “human authorship,” as works purely generated by AI or works lacking sufficient human control over the work’s expressive elements are not copyrightable. Notably, in the eyes of the Copyright Office, entering prompts alone—no matter how detailed—will not be considered sufficient control over the AI-output for the ultimate work to be entitled to copyright protection. Still, original human expression is protectible even if the final work product also includes AI-generated content—for example, a film incorporating an AI-generated special effects sequence is still copyrightable even though the AI-generated portions are not. Part 2 seemingly carves out protection for human-authored work that is perceptible in an AI-output, work that used AI only to “assist” with its creation, and human modifications to or creative selection, coordination, or arrangement of AI-generated outputs. Of course, the ultimate authority on what is copyrightable lies with the courts, which have only begun to explore the issue.

Read more here.

The EU’s New Packaging Regulation – What’s your IP got to do with it

The European Union’s Packaging and Packaging Waste Regulation (PPWR) was published on 22 January 2025 in the EU official journal. It will enter into force on 9 February 2025 and apply with immediate effect in the EU Member States from 12 August 2026.

The PPWR applies to all packaging placed on the EU market and to all packaging waste, regardless of the type of packaging or the material used[1]. It establishes requirements for the packaging’s entire life cycle imposing obligations on manufacturers and importers of products in the EU to reduce unnecessary packaging and packaging waste and promote reusable and refillable packaging and recycling[2]. An overview of the key changes can be accessed on our cross-practice ESG and Sustainability blog here.

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ITC Confirms that a Disclaimer from a Later Patent Applies to the Same Term in an Earlier Related Patent

In a November 6, 2024 opinion in Certain Computing Devices Utilizing Indexed Search Systems and Components Thereof, the U.S. International Trade Commission (“ITC”) held that statements, disclaimers, and positions taken during the prosecution of a later patent apply to the construction and interpretation of the same term in an earlier related patent. Using this standard, the Commission found no violation of Section 337 of the Tariff Act of 1930, because a disputed claim term’s scope in an earlier asserted patent was narrowed by the applicant’s disclaimer in a later related patent.

The Asserted Patents and Claims

X1 Discovery, Inc. initiated the ITC investigation by filing a complaint against seven respondents, alleging violations of Section 337 based on infringement of U.S. Patent Nos. 8,498,977 (“the ’977 Patent”) and 8,856,093 (“the ’093 Patent”). These patents relate to systems and methods for efficient search indexing. The patents share a common specification and claim priority to the same parent application shown below. In addition, the ’093 Patent had a child patent, U.S. Patent No. 9,633,139 (“the ’139 Patent).

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US PATENT FEE INCREASES FOR 2025: Not (Nearly) as Bad as They Could Have Been

Earlier this year, as we discussed here, here, and here, the United States Patent and Trademark Office (USPTO or Office) proposed a number of sweeping changes to the Office’s patent fees, including a very steep set of fees for filing terminal disclaimers, later continuation applications, and three or more requests for continued examination (RCEs). The USPTO also proposed a 25 percent hike in America Invents Act (AIA) trial fees.

The new fees, announced last month and going into effect January 19, 2025, include some, but not all of these fee hikes. The ones that remain still may well affect patent prosecution strategies. We discuss some of the most prominent fee increases here.

Background

As we discussed in our prior blogs, in an April 3, 2024 Notice of Proposed Rulemaking (NPRM), the USPTO proposed a number of fee increases, ostensibly to help the Office recover its costs. The proposal would have increased terminal disclaimer fees by as much as 700 percent and received tremendous pushback, so the USPTO backed down. Likewise, because of strong objections, the USPTO withdrew its proposal for a very substantial fee for a third RCE.

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Theft and Conversion as the Basis for a Violation of Section 337

For the first time, the U.S. International Trade Commission (“ITC”) has set forth and applied its legal standard for a theft or conversion claim in a Section 337 of the Tariff Act of 1930 investigation. Section 337 gives the ITC broad powers to investigate and address unfair acts in the importation of articles into the United States. Most Section 337 investigations are based on infringement of statutory intellectual property such as patents, trademarks, and copyrights. But Section 337 investigations can also be based on non-statutory unfair acts, such as trade secret misappropriation, unregistered trade dress infringement, and anti-trust violations. In a November 1, 2024 opinion in Certain Botulinum Toxin Products and Processes for Manufacturing or Relating to Same, the Commission articulated the legal standard for establishing a violation of Section 337 based on theft or conversion. Applying that standard, and as discussed in this article, the Commission found no showing that the respondents converted complainant’s property, and hence no violation.

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SaaS Resellers: High Court rules on protection for SaaS resellers under Commercial Agents Regulations

For 30 years many third-party agents who buy or sell goods in Great Britain on the behalf of another (their principal) as opposed to in the agent’s own name have qualified for protection under the Commercial Agents (Council Directive) Regulations 1993 [The Commercial Agents (Council Directive) Regulations 1993] (the Regulations). If the criteria for the Regulations to apply is met, then they protect both individual self-employed agents and companies who act as agents.

The Regulations stem from a 1986 EEC Council Directive [Directive – 86/653 – EN – EUR-Lex]. Equivalent protection for agents is in place in Northern Ireland [Commercial Agents (Council Directive) Regulations (Northern Ireland) 1993] with similar, but not always identical, protection across EU member states.

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The Sky Is Not Falling for the ITC in a Post-Loper World

Mandatory deference to an agency’s rulemaking may be gone, and numerous commentators fear that the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo will drastically alter the legal landscape surrounding agency decisions. But that does not mean that every agency or agency decision is in peril. We explore here the implications of the Loper Bright decision on the U.S. International Trade Commission (“ITC”), when it conducts investigations under Section 337 of the Tariff Act of 1930 relating to alleged violations of intellectual property rights (e.g., allegations of patent infringement), which typically involve decisions of technical and economic analysis rather than rulemaking. Our analysis suggests that the ITC’s body of experience and a long history of judicial review of ITC Section 337 decisions should minimize the impact of the Loper decision on Section 337 investigations.

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Breaking News from Germany! Hamburg District Court breaks new ground with judgment on the use of copyrighted material as AI training data

In an eagerly anticipated judgment dated 27 September 2024 (case number 310 O 227/23) the Hamburg District Court dismissed the complaint by photographer Robert Kneschke asserting claims for copyright infringement against non-profit Large-scale Artificial Intelligence Open Network (LAION) based on the use of his photograph in a data set for training AI image generators. Mr. Kneschke had uploaded his photo on a microstock photography website. The website’s terms of use provide for a restriction of using automated programs, applets, bots or the like to access content on the website including scraping.

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Dysfunctional Patent Families: The Federal Circuit Draws Two Different Conclusions on Whether a Later-Filed Patent Can Invalidate an Earlier-Filed One in the Same Family

When a patent application is allowed, the claims may not precisely cover everything that the applicant wants to protect. Rather than add new claims after a notice of allowance and prolong prosecution, applicants will commonly file one or more continuation applications to pursue different claims. The continuation has substantially the same specification and drawings as the original application and will claim priority to the original application, so it is treated as having the same filing date and – absent any adjustments due to patent office delay – the same expiration date as the original. But when such patents have different adjustments to their term, troubles may arise. The Federal Circuit’s most recent decision on this issue addresses some, but not all, potentially problematic situations, as we explain here.

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