By: Alexander Tranquill

When did patent trolling become so hard? At first, it seemed like the perfect business model—patent trolls, or non-practicing entities (NPEs), could simply scoop up idle patents for cheap, then turn around and assert these patents against unsuspecting companies in an infringement lawsuit. Best of all, NPEs could do all this without ever having to spend money to develop or practice (use) the patented technology. While the NPE model is completely legitimate, it is often looked down on as being adverse to the goals of patent law. Still, with little intervention from federal lawmakers, states lawmakers have stepped in, passing legislation to curb the damaging impact of NPEs on innovating companies. However, the constitutionality of these state-level measures have come under scrutiny in the pending case Micron Technology v. Longhorn IP. Now, the Federal Circuit must weigh in on whether these laws can withstand constitutional scrutiny. 

In 2023, an Idaho district court concluded that a state law aimed at disincentivizing NPE infringement claims passed constitutional muster. Specifically, the statute at issue made it “unlawful for a person to make a bad faith assertion of patent infringement in a demand letter, a complaint, or any other communication.” The constitutional challenge to this Idaho law sprang out of a patent infringement claim asserted by Longhorn IP against Micron. However, Micron had already been sued by an affiliate of Longhorn under the very same patent infringement theory, subsequently prevailing in the suit. Therefore, Longhorn saw the current litigation as a “bad faith assertion” of patent infringement, counterclaiming against Longhorn under the Idaho statute currently at issue. Because the district found the law constitutional, Longhorn appealed the ruling to the Federal Circuit. Ultimately, the upcoming Federal Circuit decision will hinge on federal preemption of state patent laws, while also implicating equivalent laws in thirty other states with its decision. 

Overall, the governance of patent law is allocated to Congress and the federal government. Specifically, under Article I of the Constitution, Congress holds the power “[t]o promote the Progress of Science and useful Arts.” Furthermore, the Constitution’s Supremacy Clause ensures that federal law takes precedence over conflicting state laws. Therefore, the question for the Federal Circuit in Micron is whether the Idaho law conflicts with federal patent law. However, this federal “preemption” question is not so simple since not every state law relating to patents is considered “in conflict” with the federal patent system. Instead, this issue often hinges on obstacle preemption, where a state law will be deemed unconstitutional if it stands “as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress.” In this way, the Micron decision centers on whether the Idaho law squares with the goals of the federal patent system. While the standard for obstacle preemption is often viewed as malleable, one thing is clear from past precedent: federal courts are loath to uphold laws that upset the patent bargain. 

Thomas Jefferson once famously uttered “ideas should freely spread from one to another over the globe.” However, the patent system devised by the Founding Fathers represents a major exception to Jefferson’s rule. Instead, the federal patent system represents a necessary evil, illustrating a societal bargain artfully designed to promote science and the useful arts. As conceived, the patent system offers inventors a temporary monopoly over their creations, while ensuring the public receives the benefit of the invention following the expiration of the patent term. Essentially, this system builds a database of knowledge for the public, helping others to innovate while also rewarding inventors for their contribution.  

The importance of upholding the patent bargain has been cited implicitly and explicitly by federal courts when ruling on preemption questions. First, in Bonito Boats, the Supreme Court invalidated a Florida statute that made it unlawful to copy the hull design of a vessel manufactured by another party. The Court reasoned that the patent system rests on a delicate “balance between the need to encourage innovation and the avoidance of monopolies which stifle competition.” The Florida statute upset this balance by granting “patent-like protection[s] to boat designs not protectable by patent laws,” thus resulting in anti-competitive effects in the boat industry and upsetting the patent bargain as a result. Further, in Kewanee Oil, the Supreme Court upheld state trade secret laws, which provided trade secret protections to patent eligible subject matters. However, unlike Bonito Boats, the Court focused on promoting innovation, concluding that the remedies under the law still protect innovation while doing little to dissuade parties from seeking patent protection. Thus, the state trade secret laws at issue in Kewanee failed to upset the patent bargain, and the law was found to be constitutional. 

Like these cases dealing with preemption, the Federal Circuit in Micron will likely be influenced by the goals of the patent bargain. Again, our Constitution makes only one demand to U.S. lawmakers: “[t]o promote the Progress of Science and the useful Arts.” The Idaho law at issue in Micron specifically targets parties that assert patent infringement in bad faith; however, the impact of these baseless, bad-faith claims often have a chilling effect on innovation. Generally, when an NPE brings suit against a company, they will both demand a payment to settle the pending lawsuit and threaten costly litigation in the alternate. Therefore, even if the defendant determines they are likely to prevail on the merits of a claim, the most economical option may be to cede to the NPEs original monetary request, thus avoiding litigation costs. 

Overall, this system, with its looming litigation costs, produces conditions that allow the NPE-model to thrive. Further, these additional costs serve as a marketplace barrier for innovating companies, while also disincentivizing these companies from investing in research and development over the fear of being sued. In a research study performed in 2014, patent trolls were found to have destroyed over $60 billion annually in company wealth. Thus, as demonstrated by these inflated numbers, the economic incentive for NPEs to bring meritless claims in hopes of a quick settlement is huge. The Idaho law at issue in Micron simply tries to curb this incentive by requiring a bond to be paid by the NPE prior to litigation. The effect mitigates meritless claims by requiring a large upfront payment to use the court system. Thus, unlike Bonito Boats, where that state statute was found to harm innovation by protecting unpatentable subject matters and fostering anti-competitive behavior as a result, the law at issue in Micron actually provides a shield, seeking to reduce the number of meritless suits that are thrown at our innovating companies. In fact, the Patent Act already includes an enhanced damages provision for exceptional cases; therefore, by attempting to curtail NPEs’ effect on our businesses, the goals of the Idaho law are very much in-line with the federal directive. Overall, while the laws at issue in Micron may incidentally chill the number of filed patent infringement claims (as claimed by Longhorn), the law still promotes innovation by protecting our companies from bad-faith patent assertion. Overall then, it appears likely that the Federal Circuit will affirm the district court ruling, allowing states to use legislation to shield their most valuable companies from NPEs.

#patentlaw #NPEs #federalpreemption

By: Santi Pedraza Arenas

In recent years, sophisticated technology has increasingly challenged the integrity of professional chess. While advancements in chess computing have transformed the game, they have also enabled forms of cheating that threaten the sport. This blog explores the mechanics of computer-assisted cheating, examines legal proceedings related to these controversies, and considers what the future might hold for a game that has long been celebrated as the peak of human intellect.

The New Age of Chess and the Technology Behind Cheating

The integration of computers into chess has a long history. Early experiments in computer chess began in the late 1940s with Alan Turning’s Turochamp, a rudimentary program that could evaluate a chess position. Over time, these early endeavors evolved dramatically, culminating in landmark achievements such as IBM’s Deep Blue, which defeated world champion Garry Kasparov in 1997. This victory marked a turning point in the history of chess, as computers proved to be better than the best human players. Modern engines like Stockfish and AlphaZero are even better than these early systems and have only widened the gap between man and machine.

The rise of chess computing is not synonymous with unethical practices, rather these technological advancements have played a crucial role in the growth and evolution of modern chess. Today, computer analysis is an invaluable tool for players at every level. Grandmasters and amateurs alike use these programs for training, game analysis, and preparation. Websites like Chess.com and Lichess have made high-quality chess widely accessible, fostering an environment where learning and fair competition go hand in hand. However, while the majority of chess computing is used to promote learning and fair play, the same technologies have also provided avenues for cheating.

Although any form of cheating undermines the spirit of chess, its impact tends to be less consequential at lower levels where competitive stakes are modest. The real concern arises in high-level tournaments, where significant prize money and reputations are at stake. In some instances, players have been caught using discreet electronic devices that deliver pre-calculated moves directly from a computer during a match. More elaborate schemes have involved remote assistance, where a third party or hidden software processes the live board state and communicates optimal moves to the player in real-time. 

One of the most publicized controversies emerged from a recent clash between Magnus Carlsen and Hans Niemann. Allegations surfaced that Niemann used computer assistance during his games, prompting heated discussions across the chess community and in mainstream media. The New York Times reported that the accusations not only threatened individual reputations but also cast doubt on the legitimacy of tournament results, undermining the confidence of fans and organizers. 

Legal Battles: Defamation, Evidence, and the Courtroom

The controversies surrounding computer-assisted cheating in chess have now entered the legal arena, highlighting the enormous stakes involved. Central to this legal drama is the case involving Hans Niemann, who filed a defamation lawsuit against prominent figures and platforms that publicly accused him of cheating. Niemann’s suit, which sought significant damages in Missouri federal court, highlighted major legal questions about free speech, the burden of proof, and the standards required to substantiate claims in the digital age. 

The Niemann case offers a window into the evidentiary challenges created by chess cheating scandals. In June 2023, the Missouri federal court dismissed Niemann’s lawsuit, emphasizing that he failed to meet the high burden of proof required to show that the statements made against him were both factually false and maliciously intended. This ruling highlights the difficulty of proving defamation in a field where accusations often rely on statistical analysis rather than direct evidence. As detailed in the case records, the court also reaffirmed that subjective opinions, even when damaging, are generally protected under the First Amendment. The case underscores the evolving legal standards required to substantiate cheating allegations, where digital evidence must be rigorously analyzed and verified before it can serve as the basis for punitive action. As technology continues to shape competitive chess, the legal system will likely play an increasing role in determining how to balance reputation, fairness, and free speech.

Experts emphasize that establishing wrongdoing in chess is particularly challenging. Digital evidence, unlike video or physical proof, requires specialized analysis to determine if a player’s moves correlate too closely with computer engine recommendations. Unlike physical sports, where video footage or physical evidence can capture clear evidence of rule-breaking, proving computer-assisted cheating requires a deep analysis of digital data, move timing, and even device signals. As explained in FIDE’s Anti-Cheating Guidelines from 2014, technical evidence must be meticulously gathered and interpreted by experts who can bridge the gap between raw data and legal standards.

A Path Forward: Embracing Technology and Reforming the Legal Landscape

Looking ahead, the chess community is at a crossroads. On one hand, technological advancements have greatly enriched the game, offering new methods of training and analysis that benefit players at all levels. On the other, these same tools have provided new ways to circumvent fair play, especially in tournaments where the stakes are high. The challenge now is to harness the benefits of the technology while putting in place safeguards that prevent its misuse.

Many believe that the answer lies in a combination of smarter technology and clearer legal guidelines. Advanced detection systems are already in use to monitor game data in real time, helping to flag suspicious behavior before it can affect a match. However, the framework for addressing allegations of cheating must be strengthened. This could include establishing standardized protocols for evidence collection and analysis, as well as specialized arbitration panels that understand both the nuances of chess and the complexities of digital evidence.

Moreover, these reforms must consider the broader implications of privacy and personal rights. Any new measures should aim to protect the game’s integrity without compromising individual players’ rights. For instance, while reviewing moves made over the board is standard practice, one notorious case involved searching restroom stalls at an event. Although this investigation did uncover evidence of cheating, it highlights a potential slippery slope of overreach and into privacy violations. Striking this balance is crucial, as overly intrusive measures risk alienating the very community they are designed to protect. The key lies in developing clear, internationally recognized guidelines that address both the technical and human elements of cheating, ensuring that any sanctions are both fair and proportionate.

Conclusion

The pressure of computer-assisted cheating in professional chess represents a challenge that intersects technology, ethics, and the legal domain. As the controversies and legal battles of recent years illustrate, this is not merely a matter of rule enforcement but of protecting a legacy that celebrates human ingenuity. The legal proceedings, such as Hans Niemann’s high-profile defamation suit, underscore the deep personal and professional consequences of cheating allegations. They also highlight the urgent need for a balanced approach that embraces both technological innovation and legal reform.

For the chess community, the path forward involves dual commitment: enhancing anti-cheating technologies while crafting legal frameworks that are just, transparent, and respectful of individual rights. By fostering collaboration between players, organizers, legal experts, and technology developers, the sport can work toward restoring trust and ensuring that every move on the board is a true test of human intellect.

#WJLTA #UWLAW #ChessCheating #ChessLaw

By: Dustin Lennon-Jones

The introduction of name, image, and likeness deals has resulted in massive amounts of money being paid to college athletes. In its first year, Opendorse, the leading NIL marketplace, valued the total market for deals at around $917 million. This number could reach a staggering $2.5 billion with the introduction of revenue sharing next year. As schools prepare for a new revenue sharing model, the applicability of Title IX raises important questions on how this money will be distributed.

Title IX and College Athletics

Under Title IX, codified as 20 U.S.C. §§ 1681-88, educational programs that receive federal funding are prohibited from discriminating on the basis of sex. In higher education, Title IX applies broadly across numerous areas, including intercollegiate athletics. Department of Education regulations, enforced by the Office of Civil Rights (OCR), require that schools offer equal benefits, opportunities, and treatment to its men’s and women’s sports programs. Equal opportunity does not require a school to offer the same sports to both men and women, or even the same number of sports. Rather, opportunities should be proportional to the school’s enrollment. This means that if a school’s undergraduate enrollment is 55% women, then approximately 55% of its athletic opportunities should go to women. This is also true for financial assistance, so scholarships must be available on a proportional basis to the number of participants in men’s and women’s athletics. Equal benefits and treatment means that men’s and women’s sports teams are treated equally in terms of equipment and supplies, scheduling, facilities, recruitment, and much more. 

The Current NIL Landscape

Though the National Collegiate Athletic Association (NCAA) began allowing student-athletes to profit off of their own name, image, and likeness (NIL) in 2021, schools were forbidden from paying their athletes themselves. Instead, student-athletes signed deals with third parties, often facilitated or funded by NIL “collectives.” These are independent organizations not officially affiliated with a given university and are typically funded through donations. However, this characterization is largely in name only. Collectives are often founded by wealthy fans and alumni of a school, utilized explicitly to recruit athletes to their school. For example, the top ranked high school football prospect in the country, Bryce Underwood, flipped his commitment from Louisiana State University to the University of Michigan after he was reportedly offered an NIL deal of $12 million. The NIL collective “Champions Circle” issued a statement following this, welcoming Underwood and thanking “our Founding Members and others associated with Champions Circle who have worked tirelessly behind the scenes to make it possible to continue our work building championship teams at Michigan.” Nonetheless, NIL collectives are officially independent from schools and do not receive federal funding, making them currently beyond the reach of the requirements of Title IX.

Proposed Settlement in House v. NCAA

On October 7, 2024, a federal judge in California granted preliminary approval to a settlement agreement in House v. NCAA, which would allow schools to share 22% of their annual revenue with student-athletes, capped at $22 million. While this doesn’t seem to fit into the traditional idea of “financial assistance” discussed in Title IX, it is not entirely distinct either. The settlement would also remove scholarship caps, and any money spent on scholarships would count toward the $22 million revenue sharing limit. Which begs the question; since schools will be paying student-athletes directly through revenue sharing, and this money is, whether directly or indirectly, funding scholarships, should it be subject to the requirements of Title IX? Or, since athletic revenue is not brought in equally across the various teams, should it be distributed proportionally to the individual teams?

The Biden Administration OCR Fact Sheet

On January 16, the Biden Administration provided some guidance on this financial assistance question. The OCR issued a fact sheet announcing that NIL payments are “financial assistance” within the meaning of Title IX and must therefore be made proportionately to male and female athletes. It is worth noting that a fact sheet is not legally binding, but instead are signals to members of an industry on how a department intends to interpret the law in the future. When leadership changes, these interpretations are easily changed as well. And, sure enough, the Trump Administration reversed course on February 11 and rescinded the fact sheet. In a statement, acting assistant secretary for civil rights Chris Trainor said that Title IX “says nothing about how revenue-generating athletics programs should allocate compensation among student athletes” and would require clear legal authority to support it, which “does not exist.” 

What Happens Next?

Regardless of who you agree with, Trainor is right about one thing: there is no clear legal authority. Title IX and the resulting regulations were written when the debate was whether or not providing cream cheese with bagels was an improper benefit. Now, we are asking questions with million-dollar answers. How it shakes out will have immense consequences for schools and their student-athletes. For example, Texas Tech University announced their plans to share 74% of the revenue with the football team, with men’s basketball receiving around 18%. Women’s basketball, baseball, and women’s volleyball would combine to share the remaining 8%. While not exact, this is approximately tracking the revenue attributable to each of those teams. If revenue sharing payments were subject to Title IX, such a distribution would be unlawful, as Texas Tech’s undergraduate enrollment is approximately 50% women. Regardless of how schools choose to make these payments, distributions like Texas Tech’s seem primed for a Title IX lawsuit, especially while Congress remains on the sidelines.

#NIL #TitleIX