12.01.2017 0

Finally, a big international win for intellectual property rights

By Rick Manning

As originally published at http://thehill.com/opinion/technology/362197-finally-a-big-itc-win-for-intellectual-property-rights

The United States has long stood as the center for innovation across the globe — even as we ceded other important industries like manufacturing. Thanks to a strong patent system, written into the Constitution, we have long encouraged creativity and invention that has made us the envy of the world.

Unfortunately, over the last few years, that position has become endangered.  According to the U.S. Chamber of Commerce’s annual IP index, the U.S. is now number 10 in patent protection after years as number one.

We are on a dangerous path if we allow our patent and Intellectual Property system to continue to weaken.  If innovators and patent holders face huge barriers to enforce their rights and protect their property, we will strike a devastating blow to our economy. The key to a functioning innovation cycle is the ability of inventors to benefit from their work and protect it when someone steals it.

Fortunately, a recent decision from the U.S. International Trade Commission (ITC) sends an important message that patent rights will be protected.  In a typical case for the ITC — a U.S. “quasi-judicial” body — the Commission upheld a previous ruling by an administrative law judge against Comcast, determining it violated Tivo’s patented technology.

For years, Comcast, like the other cable companies, licensed patented technology from Rovi (now owned by TiVo), which allowed viewers to use their smartphones to control their set top boxes.  At the time of renewal, Comcast decided it would no longer pay to license the technology but was still planning to use it — which is effectively stealing from TiVo.

Because the ITC found that Comcast’s set top boxes were infringing TiVo’s IP and those boxes are manufactured outside of the U.S., the ITC rightly decided to impose an exclusion order preventing Comcast from importingany of the infringing set top boxes into the U.S.  To avoid this, Comcast could simply pay the royalty — as it did for years or disable the infringing features. Comcast’s boxes would not be subject to ITC jurisdiction, by the way, if they were manufactured in the U.S., although TiVo would have other avenues to protect their rights.

The decision is a critical development for the protection of IP and sends an important message to big companies who think they can get away with stealing someone else’s ideas and property. The ITC exists for this very purpose and routinely makes such rulings, which help ensure technology imported into the U.S. follows our IP laws and does not encourage theft.

While the default position of the ITC is to protect IP and issue an exclusion orders unless it is demonstrated that it is against the public interest to exclude the infringing product, Comcast will no doubt criticize the decision and call for delays in its implementation as it has in previous filings. They may even try to get the Trump administration to set aside the ITC decision — which the administration has the ability to do, although it is extremely rare.

In this case, it is clear that the public interest is best served by protecting IP and there would be no reason for the administration to take the extraordinary step of helping the powerful media conglomerate Comcast to allow them to continue taking someone else’s property without payment. Likewise calls to appeal the ruling should be rejected as they would only allow them to find new suppliers and reset the entire case — setting back TiVo’s ability to protect its property.

After this important ruling, it’s time for Comcast to live up to its obligation and comply with the order. They have clearly been using someone else’s property — for which they used to pay a fee.  They cannot simply decide they no longer want to pay, but continue using the popular feature.  After this ruling, they need to either pay the licensing fee or no longer use the technology at issue — or they can’t import their boxes into the U.S.

As we fight to strengthen our patent and IP system to encourage inventors and creators to take risks and deliver cutting-edge ideas, we need to ensure that their patent rights are protected from powerful companies and thieves who seek to take their property. Enforcing those IP protections will help ensure that our nation continues to provide the incentives needed to continue leading the world in innovation.

Richard Manning is the president of Americans for Limited Government.

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