Intellectual Property in Disruptive Technologies

"A truly disruptive technology not only changes the way that people think but also the way they operate."

- Wasserman

For several years, we have discussed Intellectual Property (IP) as one of the legal mechanisms we have in order to protect creators, innovators, and authors from unlawful use by third parties while still encouraging innovation and development. Since the Venetian Statute in 1474 until today, this legal tool has maintained the two stated objectives: protection of creators and innovation promotion.

Innovations can either be augmented, revolutionary or disruptive. We are living in an ongoing age of rising creativity, which is leading us to disrupt technologies. Disruptive innovation denotes the phenomenon of a new competitor entering an emerging market and turning an existing industry on its head, with the ability to penetrate all relevant existing sectors. Disruptive technologies include 3D printing, artificial intelligence (AI), connectivity/the Internet of Things (IoT), and blockchains. These innovations undoubtedly make life simpler, but the same cannot be said about the protection of Intellectual Property Rights (IPR) arising from their use.

IP plays a significant role in captivating emerging and innovative technology and enhancing the competitiveness of the market based on technology. IP law has become embroiled in controversies over the capacity to adapt to new technologies, and now is the moment to speculate about IP and disruptive technology together. It is well accepted that the most economically significant innovations are transformative or disruptive in nature, displacing whole classes of technology by the process of creative destruction.

The typewriter industry, for example, was replaced by the introduction of information technology. Even solid IPRs in old technologies might not be a barrier; instead, they have been invented around or avoided by the innovator. Most notably, the combination of different intellectual activity results within a single technology and the establishment of complex intellectual rights for such technology (patent, copyright, trademark, design) leads to even broader complexities, such as giving protection to robotics under Copyrights, Trademarks, Patents, and Trade secrets.

As a result, granting protection under a single comprehensive law becomes impractical. The whole process of protection becomes costly and time-consuming due to such variation in modes of protection. It is vital to note that the legislation governing these technologies cannot be too restrictive because the type of innovation and development that these technologies enable is meant to be encouraged by the IP.

Importance of Patents for Disruptive Technologies

Smartphones, drones, gene-editing via Clustered Frequently Interspaced Short Palindromic Repeats (CRISPR), targeted cancer immunotherapeutic biologic drugs, self-driving cars, and the internet of things have all been introduced in the last 20 to 25 years. This disruptive technological and revolutionary growth is not likely to decline in the coming decades.

Disruptive technologies in any industry have the enormous potential to provide previously unexplored opportunities, results, and possibilities, such as strategic partnerships and access to new markets. Such innovations of technologies typically interrupt existing markets by displacing leading business companies and shifting market scenarios. As a result, it is strongly recommended that anybody running a company protect their innovations or inventions from their competitors, as they are particularly vulnerable to theft and plagiarism. For this, it is always wise to seek legal counsel from efficient Intellectual Property Lawyers.

IPRs play an important role in leading a creative and hardworking entrepreneur to success. When an individual implements or conceptualizes disruptive and original inventions, patents, the most exclusive type of IPRs, protect the fruits of invention from misuse and illegal commercial usage by someone other than the person himself.

IP protection aims to safeguard not only new inventions or creations but also those that are still in existence. After filing a patent application in the respective country, developers gain access to all relevant knowledge for embarking on a new adventure. They will also learn of any other person or inventor who owns a patent on a particular type of invention, thus avoiding potential IP lawsuits in the future.

Filing for a patent allows companies and entrepreneurs to dominate a room with higher entrance barriers, giving them a competitive advantage to expand at a faster rate than others that do not own a patent or other IP rights. Entrepreneurs and individuals who appreciate the value of the IP will quickly establish themselves and achieve success. In a world dominated by technical advances, patents are critical because they allow inventors to create dynamic inventions and technologies. As a result, investors are increasingly attaching a high priority to patents. Neglecting the essentials of IP for the business may lead to many challenges which can arise in the future.

Face ID Technology and IP Considerations

One is familiar with biometrics data if they have ever used their face to open their phone, swiped their finger to unlock a device, or used their voice as a password. Biometric data may include fingerprints, DNA, facial recognition DNA, palm prints, hand geometry, iris recognition, retina, gait analysis, body geometry, and other attributes that determine human characteristics.

Biometrics data can be particularly useful for AI technologies. This is due to the fact that AI is essentially a data-driven technology that uses unique datasets to train task-specific AI, computer models. Biometric datasets from a variety of people could be obtained and used to train a biometric-centric AI model. Once practiced, the biometric-centric AI computer model may use new data to forecast, identify, or otherwise produce effects for use in a range of applications, such as providing security-related decisions.

The World Intellectual Property Organization (WIPO) had reported in 2019 that it had managed about 3.2 million worldwide patent applications. This flood of filings continues to provide valuable but largely untapped patent data sets. Relevant data from this untapped data must be identified, analyzed, and interpreted in a way that offers useful feedback from the patents for improved decision-making and policy growth. This data is transformed using innovative and ever-changing methods referred to as patent analytics.

In terms of IP, patents will offer extensive protection for AI innovations that use biometrics data. Apple, for example, has hundreds of patents relating to its Face ID technology. A collection of patent claims for a biometric-centric AI innovation will generally conform to its workflow, including pre-processing collected biometrics data, training an AI model with the pre-processed biometrics data, and using the AI model to produce a security or identity outcome (e.g., like Face ID).

For instance, the US Patent and Trademark Office (USPTO) had published 2019 a number of patent applications relating to the iPhone X, including Apple’s embedded Face ID 3D facial recognition system, which introduced the biometric concept to millions of customers. Many published Apple and other company patent filings include innovations that may or may not be applied in the future, such as a skin texture pattern-recognition patent Apple filed.

And because of the pandemic, Apple has come with a new technology where it received a patent on a new facial recognition system that could be used to recognize covered faces. The system first maps the landmarks on the individual’s exposed face then uses the same technology to determine which of such landmarks are obscured by another object, such as a surgical mask, hair, or a scarf. The USPTO granted a separate Apple patent for a partial facial recognition system in September 2020. It has already licensed technologies that could add Face ID to the Apple Watch, as well as filed an application for a system that would combine facial recognition with subdermal vein biometrics.

Privacy Concerns

There is currently no uniform federal legislation in the United States that governs the protection of biometric data. However, some states have addressed biometrics data on their own through data protection legislation and regulations. Laws related to biometrics have been introduced in many States, including California, Illinois, Texas, and Washington.

Illinois, for instance, was the first state to ratify a biometric privacy law, the Biometric Information Privacy Act (BIPA). The Illinois BIPA requires rules requiring individual consent for the processing of biometric data. It also provides clauses that authorize customers to sue for monetary damages in the event of alleged violations. For instance, in Rosenbach v Six Flags Entertainment Corporation (2019 IL 123186), the Illinois Supreme Court ruled that Six Flags must pay monetary damages to a boy for extracting his thumbprint without proper consent.

For the reasons stated above, companies creating new products or services that use biometrics data, including AI-based inventions, would want to follow current and developing data protection laws and regulations for the states or jurisdictions where the company’s targeted consumers are likely to reside. As shown here, certain data protection legislation can provide pitfalls for the unwary, resulting in monetary damages. Companies designing new products and services that use biometrics data will likely have to consult with a legal counsel who is informed about both IP and data protection laws and legislation in order to protect their inventions and remain on top of the ever-changing data privacy environment.

Legal Consequences

From a global perspective, The laws of the United States provide everyone the right against self-incrimination. The clause of the Fifth Amendment outlines the constitutional constraints on police procedure. The Fifth Amendment of the United States Constitution provides that no man or woman shall be put to answer for a capital or other felony until brought by a grand jury. Except in the circumstances occurring in the land, naval, or militia forces while in active service during a war. Also, no one shall be subjected to the same offense twice; instead, he will be required to testify in a criminal case against himself. Finally, no one shall be deprived of their life, liberty, or property without due process of law.

Moreover, in a conference held last year by Samsung, the company displayed a face recognition icon nearly identical to Apple’s Face ID icon. They’re not the same, the lines are thicker and closer together, and the corners are possibly a little less rounded, but when focused at Apple’s Face ID symbol, which has been subtly tweaked to blend in with the rest of the slide’s graphics.

The icon appeared roughly 50 minutes into Samsung’s press conference, which was titled “Age of Experience” for whatever reason, as H.S. Kim, the company’s consumer electronics division’s chief, was discussing the company’s cybersecurity investment, implying that through Samsung Pass, they will remain ahead of the competition by investing in identity protection and safe access to an individual’s favorite websites and mobile apps, the icon was only visible for around 15 seconds.

3D Printing and IP Considerations

Across all times, technological innovations are undoubtedly inspired by a single human need: the need for speed. Our desire to make things faster and instant has resulted in centuries of study and development. We actively created 3D printing technology as part of our effort to expedite everything, meaning, manufacturing, and subsequent consumption. Despite its success in streamlining the production of a large variety of goods, it has manifested a significant uproar in terms of IP. As the saying goes, massive output capacity does not come without significant legal responsibilities. 3D printing technology evolved from its precursor, Rapid Prototyping (RP), in less than a decade.

The 3D printing technology creates a scale model of the design, which is then subjected to another process known as additive manufacturing, also known as 3D printing. With exponential advancements, three-dimensional printing has evolved into a stand-alone manufacturing method. Given its phenomenal speed, it became known as Rapid Manufacturing (RM), Digital Manufacturing (DM), or Direct Digital Manufacturing (DDM). In a sense, 3D printing is one of the cogs in the manufacturing and production wheel as a whole. As a result, other prerequisite technologies leading to actual physical printing are needed. While this does not seem to pose significant difficulties at first sight, the compartmentalization of data processes poses pertinent concerns, particularly regarding IP.

Copyright Protection and 3D Printing

The Computer-Aided Design (CAD), the digital design file developed by AutoCAD as a requirement for 3D reproduction, could be protected under copyright law. The point stems from the preservation of copyrights for other related technologies, such as software and digital prototypes. However, some court rulings suggest the contrary. The consensus is clear for these opposing viewpoints: copyrights for CADs are as complex as the designs in the CAD file itself; therefore, each case requires a case-by-case analysis. The legal and industry views on the digital file’s qualification for IPR remain ambiguous. Although there have been some successful cases, they have always been settled on technical grounds, such as shortcomings in non-disclosure (NDAs) and non-compete agreements. A strong victory in a data-based copyright dispute necessitates expert execution of written documents from the start of the negotiation process.

Although data does not qualify for copyright protection in and of itself, aggregate data – that is, a set of raw data polished for 3D printing and classified according to feature – can qualify for IP protection. Overall, the aggregation of information embodies design data. The safeguarding of designs as a database takes a two-pronged strategy. The first is to say “intellectual creation” based on the arrangement and collection of component data, allowing copyright protection. The other concern is sui generis. It asserts that a database is “in a class of itself” and thus deserves special considerations.

Patents and 3D printing

Patents are attractive to the 3D printing industry due to their formidable spectrum of protection, which is often used as fundamental components to other innovations. CAD developers can file a patent application for their design data as long as the element that distinguishes them from related trade is found within the raw file. When the topic of patenting comes up, however, some important questions arise. Consider the case with patented component technology. If a resulting product or knowledge is produced using the same equipment, the scope of the original patent is called into question. Many experts question the parent patent’s applicability to its resultants.

On the other hand, assume that the action is intended to specifically patent design data. Since we are essentially approaching hypothetical legal ground, the patentability of data as an “aggregate collection” is also up for debate or discussion. With only a few cases, there is no solid ground for jurisprudence to define a firm stance. Design data may theoretically be patented if presented as a "product" of a patented process. Keep in mind that patenting concept data as a "product" is not the same as copyrighting aggregate data. While theoretically possible, the experience of precedent shows that courts oppose expanding patent rights outside their original scope, as established by the Hunde-Gentest case.

Trademark and Design for 3D Printing

A trademark is a sign that very well distinguishes one trader’s goods and services from those of another. Words, colors, logos, tastes, smells, the form of the products or packaging, 3-dimensional marks, or any combination of these may be used. In most cases, registration is required for a trademark to be protected by trademark law. In the case of 3D printing, where a physical object or shape of good has been duly registered as a 3-dimensional shape mark, creating a 3D replica of that mark and using it in commerce as if it were the registered mark will be trademark infringement. In Hong Kong, registered designs cover the appearance of a product, such as its shape, configuration, pattern, or design. Registered design owners have the freedom to exclude anyone from manufacturing, importing, using, distributing the design product.

Other issues have arisen as a result of the widespread use of 3D printing, including the issue of product liability. For example, an individual may be licensed to produce a 3D-printed homemade helmet but suffers injury as a result of a printing defect. Is the printer, manufacturer, or brand owner of the helmet responsible for the loss or damage incurred arising from the injury? Other ethical questions arise, such as whether it is ethical to print 3D human tissues and organs, test them in human medical care, or substitute actual human transplants. Furthermore, the above described home-printed 3D gun has sparked concerns about public safety, and with the rapidly increased availability and extensive use of 3D printers, more and more legal issues would most likely emerge from the usage of technology at both the consumer levels and commercial level.

Autonomous Car and IP

From auto manufacturers in Detroit to the tech startups in Silicon Valley, companies are pouring money into an emerging technology that will allow the concept of self-driving cars to become a reality. New collision-avoidance camera systems, high-precision GPS and excellent navigation technology, upgraded running and security software, and more advanced sensors are examples of those developments.

Companies investing in new innovations claim that self-driving cars can be considerably safer and more luxurious, as well as help to alleviate road congestion in many metropolitan areas. These companies strongly agree that self-driving cars are the future and will be a part of daily life faster than most consumers know. In reality, the global self-driving industry is expected to hit $42 billion by 2025, according to a Boston Consulting Group report.

IP plays an essential role in the advancement of self-driving cars. Companies are filing new patents on automotive control systems, copyrights on more connected operating software, and trademarks on newly created brands related to self-driving cars. In fact, between 2010 and 2015, there were more than 22,000 new inventions related to self-driving cars invented around the world with automakers, not Silicon Valley, leading the control. Interestingly, 128 auto-related companies attended the Consumer Electronics Show in Las Vegas in 2017, the largest auto presence ever at the show up to this point.

Despite the flood of IP filings relating to self-driving cars, businesses are starting to understand the importance of partnership and collaboration. Not only are car manufacturers increasing their collaboration with industry competitors, but they are also increasing their collaboration with Silicon Valley tech companies, as they may benefit from collaborating with some of the world’s best minds in digital coding, automation, and robotics. Automakers and technology companies would almost certainly need to collaborate for self-driving cars to become a possibility. The advancement of self-driving cars and their related technology opens up a slew of possibilities for examining valuation issues in the electronics, high-tech, and automotive industries.

Tesla Motors

Tesla Motors, the world’s most valuable manufacturer with the largest production of electric vehicles, is known for being at the forefront of cutting-edge automotive technology, which has made the Tesla brand become what it is today. Tesla has not only produced some of the most revolutionary automobiles, but it has also revolutionized the automobile industry as a whole.

Tesla details proposals to build software that would use other vehicles on the road as Earth-based GPS satellites in a patent released a few years back. According to Tesla, such a device would allow the company to increase its fleet’s positioning accuracy even in places where GPS signals are typically disrupted. Although GPS signals from space-based satellites are useful, factors such as satellite geometry, signal blockage, atmospheric conditions, ionospheric perturbation, and others may affect the accuracy of GPS receivers, according to the car maker’s patent background. Therein, there is a pressing need to build a technology that can significantly improve position accuracy, particularly because it will be used extensively by self-driving or fully autonomous vehicles.

The patent, titled “Technologies for Vehicle Positioning,” defines software that enables vehicles to send the required signals and positioning data. This approach enables the cars to operate similarly to GPS satellites orbiting the Earth, transmitting positional data to other vehicles on the route. The software is very flexible, according to Tesla’s patent, since it can operate with at least one network protocol, such as transmission control protocol/internet protocol, ethernet, or others. This more precise positioning system would be particularly useful for autonomous driving applications. Tesla definitely intended it to be used by its autopilot system since all of the inventors mentioned on the patent applications were at the time of the autopilot team.

Moreover, Tesla also revealed a patent titled “Enhanced Object Detection for Autonomous Vehicles Based on Field View” to increase the precision and reliability of identifying objects within images produced by the autopilot cameras in its vehicles. According to the patent, there are image sensors located at various positions on the vehicle. Certain image sensors, such as forward-facing image sensors, will be able to capture images of a real-world position that the car is approaching. It should be noted that few of these photos depict pedestrians, cars, barriers, and other elements that are critical in applications, including autonomous vehicle navigation.

Recently, a couple of months back, Tesla also was granted a patent for “Estimating Object Properties Using Visual Image Data.” According to their patent, this innovation seeks to solve the rising cost and complexity of vision sensors for mass-market autonomous vehicles. Using the vehicle’s image data and machine learning, this approach allows a vehicle to sense and perceive the distance to its surroundings. Tesla’s patent identifies an innovation that employs two neural networks to estimate object distances based solely on image data. The first neural network uses images taken by cameras around a car to calculate object distances.

The patent also gives Tesla the ability to label vision data automatically. Given that one of the most time-consuming aspects of Tesla’s fully self-driving technology production is tagging, a scheme like this will undoubtedly speed up the development and release of enhancements and upgrades to the company’s full self-driving and autopilot suites. Tesla’s patent-pending configuration could significantly improve full self-driving technology. Tesla’s image-driven approach to full self-driving technology varies significantly from that of competitors such as Waymo. Still, based on some full self-driving technology beta users’ impressions so far, it has shown some very promising performance.

Blockchain and IP

Blockchain is a decentralized, distributed ledger that keeps track of a digital asset’s provenance. It is an information-recording system that is difficult to alter, hack, or cheat. To put it another way, Blockchain is a technology that allows all digital information to be replicated through a network while being time stamped, permanent, and open to everyone on the network. Blockchain technology has significant applications in a variety of fields, including bitcoin, health insurance, real estate, voting processes, supply chain and logistics, and so on.

There are a number of possible roadblocks in the way of a large-scale legal application (including questions of governing laws and jurisdictions, data security, and privacy concerns). Despite this, in the light of IP-heavy industries, Blockchain and distributed ledger provide clear possibilities for IP protection, registration, and evidence, whether at the registry stage or in court. It also promises to be a cost-effective method of accelerating those processes. Evidence of creatorship and provenance authentication, registering and clearing IP rights, controlling and tracking the distribution of (un)registered IP, providing evidence of genuine and/or first use in trade and/or commerce, digital rights management (e.g., online music sites), and establishing and enforcing IP agreements, licenses, or exclusive distribution networks are some of the potential use cases.

Applications of Blockchain in IP

• Smart Contracts: A smart contract is a Blockchain-based computer program that gets executed automatically if a predetermined condition is met in a transaction. In the field of IP, transactions such as buying into a patent include a number of procedures, including verifying the patent's validity, negotiating the sale agreement, executing and paying the transaction, and eventually notifying all applicable patent offices of the transaction.
• Determining Creatorship: Blockchain technologies can be used to check the authenticity of IP works on a secure, trusted platform. The applications of Blockchain's proof of ownership in IP are:
  • Digital Certificate: Blockchain has been served as a timestamping tool, hashed digital certificates to be kept by IP owners that cannot be hacked or accessed by third parties, providing proof of evidence of a specific digital asset at a given time.
  • Privacy Prevention: Blockchain is a great technology to distinguish counterfeit goods from genuine products by utilizing the ledgers that show the ownership of the products. In this regard, Blockchain technology helps prevent piracy mishaps in this digital age.
  • Authenticating Tool: Blockchain can be utilized as a tool for authentication invalidating the integrity of a song/design/art or any other intellectual asset which is infringing any prior product or IP since Blockchain does hold any duplicate information in its network.
• Blockchain for Unifying IP System: Through its decentralized ledger technology, Blockchain may also help to unify the patent system across countries. This will significantly increase the efficiency of IP administration, accelerate the innovations in the businesses, and facilitate information sharing between them through the ledger.
• Blockchain for Control of Digital Assets: Defensive publications are a means to prevent anyone from patenting an invention by openly publishing it and thereby creating prior art. Blockchain may act as a defensive publication platform. Each file is given a unique fingerprint, where duplications are eliminated, the platform allows versioning, each network node may select which content it hosts, and the database is indexed and searchable.

 

Blockchain in the Indian Patent Regime

• Trademarks for Blockchain: Trademarking Blockchain-related technologies is difficult due to the fact that secrecy or pseudo-anonymity is at the core of Blockchain-related technology, which clearly contradicts trademark law, which states that the aim of a trademark is to identify the specific source from goods or services originate. Public Blockchain technologies are based on a decentralized framework under which the Blockchain is not owned by a single entity. Cryptocurrencies, which have become one of the most common applications of Blockchain-related technology, have been ruled illegal in many countries. In India, the Supreme Court India has lifted the RBI's blanket ban on virtual currencies. However, at the same time, the Supreme Court has paved the way for the RBI to devise stricter policies while admitting that the RBI has the power to control and regulate cryptocurrencies. As a result of the above challenges, trademarking decentralized Blockchain technologies/cryptocurrencies may be difficult. The name of a centralized cryptocurrency that comes from and is distributed through a single source, on the other hand, maybe protected. It's worth noting that the Indian Trademark Office has given registration to the terms "BLOCKCHAIN" and "BITCOIN."
• Patents for Blockchain: Due to the combination of a computer application and cryptography, patents for Blockchain-based technology fall into the category of computer software. Computer programs, on the other hand, are not patentable in India under Section 3(k) of the Indian Patents Act, 1970. Though interpreting the term per se in the case of Telefonaktiebolaget Lm Ericsson v. Intex Technologies (IA No. 6735/2014 in CS(OS) No.1045/ 2014) , the Delhi High Court ruled that any invention that has a technological contribution or which has a technical effect and is not just a computer program is patentable. The Indian Intellectual Property Office (IPO) seems to be accepting Blockchain-related patents, as India was placed sixth in the number of Blockchain-related patent approvals in 2018, with 67 patent applications being accepted. In India, more than 300 patent applications based on Blockchain technologies have been issued as of today. It's worth noting that the Indian IPO is open to adopting Blockchain-related technology in order to speed up and expand its processes. The Office of the Controller General of Patents, Designs, and Trademarks issued a tender in 2018 inviting interested parties to submit proposals for using AI, Blockchain, IoT, and other inventions in the IPO's Patent Processing System.