Posts in Capitol Hill

This week in Washington IP news, as a new school year begins, the United States Patent and Trademark Office (USPTO) looks at the latest research on invention education. Congress is still on vacation, yet hot topic issues are still being discussed elsewhere, including the Center for Strategic and International Studies (CSIS) looking at the state of the Chinese economy, and the American Enterprise Institute discussing what the U.S. federal government can do to patent rights during a public health emergency.

This week in Washington IP news, with Congress still on summer recess we look abroad to Brazil, which will be hosting the largest international intellectual property event in Latin America. Elsewhere, the Cato Institute discusses how EU regulations on tech companies are impacting U.S. businesses, and IPWatchdog hosts a panel on the 5G patent race.

This week in Washington IP news, Congress is about halfway through its summer recess, but events in Washington continue even if there isn’t much IP related going on. The Information Technology & Innovation Foundation (ITIF) debates how the FAA could facilitate more commercial drone innovation, the United States Patent and Trademark Office (USPTO) offers an overview of upcoming changes at the Patent Trial and Appeal Board (PTAB), and the Copyright Office will walk attendees through the basics of the Copyright Claims Board (CCB).

The past year has provided decades’ worth of developments across law and policy in the areas of artificial intelligence (AI) and machine learning (ML) technologies. If 2022 was the breakthrough year for accessible AI, then 2023 can so far be deemed as the first year of likely many more to come in the era of an AI inquisition. “After years of somewhat academic discourse,” reflects Dr. Ryan Abbott, “AI and copyright law have finally burst into the public consciousness—from contributing to the writer’s strike to a wave of high-profile cases alleging copyright infringement from machine learning to global public hearings on the protectability of AI-generated works.” Both the U.S. Copyright Office (USCO) and the U.S. Patent and Trademark Office (USPTO) are in active litigation over the eligibility of generative AI outputs for statutory protection. Additionally, both offices have held numerous webinars and listening sessions and conducted other methods of collecting feedback from the public as they work through policy considerations surrounding AI.

A little over halfway through 2023, and nearing the end of the Patent Trial and Appeal Board’s (PTAB’s) fiscal year, we can take stock of an administrative body that is settling into a decade of precedent while big changes still loom. Unlike prior years, where policy changes resulted in statistical swings for institution rates, outcomes, amendment practice, and the like, this year has been more of an extension of previous trends (though institution rates are still creeping higher).

This week in Washington IP news, while Congress continues its summer recess, the U.S. Patent and Trademark Office (USPTO) hosts several events, including on how to protect your IP in Southeast Asia. The Office also continues its #WEWednesday series, this week with an installment on how to increase the number of women in the STEM field. Elsewhere, the Peterson Institute for International Economics will look at what preventative policy measures are needed to prevent repeat bank failures in the United States.

The PREVAIL Act addresses current rules that enable gamesmanship at the Patent Trial and Appeal Board (PTAB) by huge corporations against small inventors, startups and other patent owners, and that increase invalidation rates. It introduces standing requirements, establishes a clear and convincing evidence standard to invalidate a patent, ensures a code of conduct is put in place for administrative patent judges (APJs), and more. While these changes are well-intended, due to the PTAB’s perverse incentive structure, the PREVAIL Act will only be marginally effective, and may have no real effect at all.

The U.S. District Court for the Eastern District of New York, in a decision published Monday, denied the defendants’ motions to vacate asset freezes in a case brought by Gilead alleging a massive HIV drug counterfeiting ring that involves “hundreds of millions of dollars’ worth” of fake medications. In January 2022, the court unsealed documents in the suit against a slew of defendants who Gilead said sold, marketed, and distributed counterfeits of its HIV medications. Gilead’s complaint sought immediate monetary and injunctive relief, including seizure at certain of the defendants’ premises, as well as relief for trademark and trade dress infringement and trademark dilution, among other alleged violations.

This week in Washington IP news, even though Congress is not in session, there are still some interesting events taking place in Washington, DC. The Brookings Institution holds a talk on the state of the global economy, and the Hudson Institute hosts a conversation on China with a former national security advisor. Elsewhere, the U.S. Patent and Trademark Office (USPTO) celebrates the LGBTQIA+ community’s contributions to the economy.

The Senate Subcommittee on Intellectual Property today held a hearing on Oversight of the United States Patent and Trademark Office (USPTO), with USPTO Director Kathi Vidal as the sole witness. Only a handful of senators questioned Vidal, and only one significantly challenged her in questioning. The hearing differed considerably from the House IP Subcommittee’s Oversight Hearing in April, where Vidal was repeatedly taken to task on the Office’s then-recently issued Advance Notice of Proposed Rulemaking (ANPRM).

This week in Washington IP news, a House subcommittee is turning its attention to self-driving cars and how U.S. companies can compete with their Chinese counterparts. The Senate Small Business Committee will host several women entrepreneurs to testify on how women’s participation in business can be increased. Elsewhere, the U.S. Copyright Office (USCO) is meeting to discuss generative AI’s impact on copyright law and policy.

On Thursday morning, the U.S. Senate Committee on Health, Education, Labor & Pensions (HELP) held a legislative markup hearing to debate amendments to S. 2333, the Pandemic and All-Hazards Preparedness and Response Act (PAHPARA), the reauthorization bill to extend the Pandemic and All-Hazards Preparedness Act (PAHPA). If enacted as currently drafted, PAHPARA would direct federal agencies to study alternative models for funding biomedical research, including prize systems that have been routinely rejected as a viable model by pro-innovation advocates.

I was told that elected officials count on—in fact, they need—constituent input to be effective legislators. After my patents were unjustly cancelled at the Patent Trial and Appeal Board (PTAB), I started the journey to do this very thing. Since January of 2022, I have visited Congress and the Senate two dozen times. I have visited over 200 offices telling my story and advocating for the “little” inventors, like me.

The House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet met today to hear from a number of witnesses about the intersection of intellectual property rights and consumers’ right to repair products they own. The concerns voiced by witnesses and congress members today centered around harm and cost to consumers as a result of technological protection measures (TPMs) and increased use of IP tools such as design patents to thwart competition for after-market parts.

Rattled by the failure of the Biden Administration to bow to pressure to misuse the march-in rights provision of the Bayh-Dole Act so the government can regulate prices on products based on federally funded inventions, Senator Bernie Sanders (I-VT) and his allies are doubling down. And the impact of National Institutes of Health (NIH)-supported research is now in jeopardy. Sanders taunted the Administration, pledging to hold up the nomination of Dr. Monica Bertagnolli to head the NIH until President Biden submits to his demands to do more to control drug prices, including requiring that any therapy-based on an invention arising from NIH funding must be sold at a “reasonable price.”