In this blog post I summarized the potential legal liability of issuers raising capital using Title II Crowdfunding (aka Rule 506(c)), Title III Crowdfunding (aka Reg CF), and Title IV Crowdfunding (aka Regulation A). Here, I’ll summarize the potential legal liability of a registered Title III funding portal. To start, let’s distinguish between two kinds …

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5 crucial steps to make your fundraising efforts a success based on the experience of multiple founders.

Previous Blog As we covered in our previous blog about fuel cell systems, a large contributor to their efficiency is the compressor that is selected for it. But what are the different kinds of compressors, and which one is best for a specific system? Compressors have a wide variety of designs and types, which differ Read More...

The post Compressors in Fuel Cell Systems first appeared on Turbomachinery blog.

Next Blog Alternative energy based on the use of fuel cells is gaining more and more popularity and is increasingly being used in the automotive, aerospace, and energy industries as well as other sectors of the economy. What is a Fuel Cell? Fuel cells (FC) are electrochemical devices which convert the chemical energy of a Read More...

The post An Introduction to Fuel Cells: What Are They, How Do They Work, and How Can We Improve Their Efficiency? first appeared on Turbomachinery blog.

How much does a 510k cost is the most common question I receive from customers, and there are three parts to the cost of a 510k. If you want to save $9,559 on your 510k cost of submission to the FDA, you need to listen to ALL of this video and follow every single step […]

The post How much does a 510k cost? appeared first on Medical Device Academy.

As I recently (tentatively) predicted, on Friday 30 July 2021 Justice Beach in the Federal Court of Australia handed down a judgment giving Australia the dubious honour of becoming the first country in the world to legally recognise a non-human as a valid inventor on a patent application: Thaler v Commissioner of Patents [2021] FCA 879.  I would suggest that the remarkable speed with which this unnecessarily lengthy (228 paragraphs) decision was rendered, after being heard on 2 July 2021, may reflect the judge’s enthusiasm for issuing such a ground-breaking ruling.  Unfortunately, I do not share that enthusiasm, and I am confident that there are many others who are equally uncomfortable with the outcome.  My hope is that this includes officials within IP Australia and the Department of Industry, Science, Energy and Resources, and that the decision will be duly appealed to a Full Bench of the court.  It is, in my view, deeply regrettable that the Commissioner of Patents did not put on a stronger defence in the first instance because, even though an appeal was probably inevitable either way, the worldwide publicity that this decision is now generating is not necessarily beneficial for Australia.

The judge summarised his reasoning (at [10]) that:

…in my view an artificial intelligence system can be an inventor for the purposes of the Act. First, an inventor is an agent noun; an agent can be a person or thing that invents. Second, so to hold reflects the reality in terms of many otherwise patentable inventions where it cannot sensibly be said that a human is the inventor. Third, nothing in the Act dictates the contrary conclusion.

The patent system faces many challenges, but right now a need to grant more patents in a wider range of circumstances in not one of them.  We are in the grip of a global pandemic, and very serious questions are being asked about whether patents deliver a net benefit to the people of the world by incentivising the development of new vaccines and treatments, or whether they have the detrimental effect of denying affordable access to vital care and protection in poor and developing nations.  While I am firmly in the former camp, it only becomes harder to defend the patent system when opponents see the law expanding access to allow inventions generated by machines – potentially including those owned and controlled by giant corporations.

The standing and reputation of Australia and our patent laws are also at risk.  The country is already the target of criticism – rightly or wrongly – for declining to support calls for a waiver of IP provisions of the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).  The Federal Court’s decision in Thaler is receiving global attention, and not all of it is positive.  One tweet (in Spanish) compares Australia’s patent-friendly approach unfavourably with the infamous incident of an early innovation patent being granted for a ‘circular transportation facilitation device’, a.k.a. the wheel.

Just because patents are (or, at least, can be) good, it does not follow that more patents, generated in more ways, by more entities, must be better.  Australia should not think that we will necessarily come across as a socially and technologically progressive nation by ‘leading the way’ on allowing patents to be granted for inventions generated by non-humans.  On the contrary, we risk being left out on our own and looking like chumps.  The United States will not follow our lead – there are Constitutional, statutory and procedural barriers to permitting US patent applications naming non-human inventors.  The European Patent Office will not follow in the foreseeable future – it has already established its position via an academic study and discussions with member states of the European Patent Convention.  The UK has so far rejected any expansion of inventorship to non-humans.  And, contrary to recent reports (and the claims of the Artificial Inventor Project’s Ryan Abbott), the recent grant of a patent in South Africa naming DABUS as inventor indicates nothing about that country’s law or position on the issue.  As South African patent attorney Pieter Visagie has explained, the application effectively avoided any scrutiny of the legitimacy of the inventor by virtue of being filed via the international (PCT) system.

So what does Australia gain by being the first – and possibly only – country in the world to legally recognise non-human inventors?  Nothing, as far as I can see, other than a whole lot of unneeded publicity and global scrutiny of our patent laws.  If we are lucky, we will not receive many serious patent applications for inventions generated by machine inventors, and little practical harm will be done.  At worst, however, we could become the only country in the world to grant patents on such inventions, mostly filed by foreign applicants, creating exclusive rights that are enforceable only in Australia to the relative detriment of Australian innovators and consumers.

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Here’s everything you need to know about the Overwatch Contenders tournament: the participating teams, how to get into, where you can watch the event

The U.S. Supreme Court recently decided a case resolving a patent dispute between two medical device companies, Hologic, Inc. and Minerva Surgical.  The opinion was closely watched because it raised the question of whether an inventor who has assigned a patent is legally prevented from later attacking the validity of that same patent — a doctrine historically referred to as “assignor estoppel.”

The Supreme Court’s opinion on June 29, 2021, upheld but limited this doctrine, defining its boundaries and emphasizing it is based on legal principles of equity and fair dealing.

In the case, Csaba Truckai was a listed inventor on a patent application, the rights to which were subsequently acquired by Hologic, Inc. Mr. Truckai then founded Minerva Surgical, Inc. and developed an endometrial ablation system.  Hologic sued Minerva for patent infringement of one of the assigned patents related to endometrial ablation.

In response to the claims of patent infringement, Minerva attacked the patent as allegedly invalid. In response, Hologic argued that, under assignor estoppel, Minerva should be prevented from attacking the patent’s validity because Minerva’s founder, Mr. Truckai, was an inventor on the same patent.

In deciding the case, the Court recognized the fairness principle of assignor estoppel — that an inventor shouldn’t be able to initially tout an invention to the patent office, only to later disclaim its worth after assigning it. However, the Court decided that the lower court had applied assignor estoppel too expansively to muzzle inventors.  Thus, the Court held that the doctrine applies only when an inventor makes statements (explicitly or implicitly) in assigning a patent, and later contradicts those statements in litigating against the owner of the patent. The Court reasoned that an assignment does carry an implied assurance of a patent’s validity, but where the assignor has not made explicit or implicit representations that contradict an invalidity defense, there is no ground for assignor estoppel.

To illustrate the boundaries of assignor estoppel, the Court provided three non-exhaustive examples of when assignor estoppel does not apply:

• First, when assignment occurs before an inventor can make a warranty of validity (e.g., “when an employee assigns to his employer patent rights in any future inventions he may develop during his employment”);
• Second, when a later legal development renders the warranty of validity irrelevant (such as a change in the law); and
• Third, when a change in patent claims occurs for an assigned application (e.g., “the new claims are materially broadened” during patent prosecution after the assignment takes place).

Nevertheless, each assignor’s and each company’s situation is unique, and the application of assignor estoppel depends on the particular situation. Medical device companies and others concerned about patents should seek the guidance of professional legal counsel when making any determination regarding whether assignor estoppel applies.

The post Supreme Court Upholds, but Limits, Patent Infringement Defense of “Assignor Estoppel” appeared first on Knobbe Medical.

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On 2 July 2021, a hearing took place at the Federal Court of Australia in Melbourne, before Justice Jonathan Beach, in the matter of Stephen Thaler v Commissioner of Patents.  This case concerns the question of whether a patent may be granted for an invention that was devised by a machine, rather than by a human inventor.  Back in February, I reported on the refusal by the Australian Patent Office to accept as valid an Australian patent application naming an ‘artificial intelligence’ going by the name DABUS (‘Device for the Autonomous Bootstrapping of Unified Sentience’) as inventor.  And in March I reported that an application had been filed in the Federal Court for review of the Patent Office decision.

Regular readers will know my position on this issue – I do not consider it appropriate at this time (or, potentially, ever) to grant patents for inventions devised entirely by automated means, such that there is no human inventor.  I have written an article targeted to a more general audience, which has been published by InnovationAus, providing an overview of the Australian case, and broadly discussing my concerns.  Here I will be going into more detail of the arguments presented at the recent hearing, and why I think it would be very unfortunate if Justice Beach were to decide that this is a suitable case for judicial development of the law to embrace machine inventors, as he is being encouraged to do by Thaler.

I was able to attend the hearing virtually, since it was being held via web conference.  Thaler’s team, led by experienced and highly-regarded barrister David Shavin QC, appeared in person in the Melbourne courtroom with Justice Beach, while the Commissioner of Patents was represented by Hamish Bevan, appearing via video from Sydney (subject to restrictions, due to an ongoing COVID outbreak).  Although I disagree with the proposition, I thought that Mr Shavin presented a persuasive argument that the relevant provisions of the Australian Patents Act 1990 can, and should, be interpreted to encompass non-human inventors, and that Mr Bevan perhaps did not do enough to counter this argument.  I formed the impression that Justice Beach just might be minded to ‘develop’ the Australian law to permit patent applications having no human inventor, in part because he was not presented with any particularly good reasons not to do so.

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