Posts in Government

Rader’s Ruminations: Let’s Settle It – Are Patents Monopolies or Not? Part I

The simple answer is “no”; a patent protecting a new and nonobvious invention is not an antitrust monopoly. The reason is also quite simple; an antitrust monopoly requires the unlawful capture or maintenance of market power by withdrawing products or services from the public domain, thus injuring competition in market transactions. See, e.g., Standard Oil v. U.S., 221 U.S. 1 (1910). In general terms, an antitrust monopoly requires: (1) market power (sufficient control of a market to set prices or restrain competition, but not market dominance achieved with a superior product or business acumen); (2) restricting the public domain to injure competition; and (3) illegal anticompetitive conduct to achieve these market distortions. A patent, standing alone, does not meet any of these requirements.

C4IP Urges Senate Judiciary to Ignore Common Myths About Drug Patents

On May 20, the Council for Innovation Promotion (C4IP) sent a letter addressed to the U.S. Senate Committee on the Judiciary one day before the committee held a hearing on competition and consumer pricing in the prescription drug market. C4IP’s letter pushes back against common myths about the impact of patents on drug prices, some of which were the focus of debate during the Judiciary Committee hearing this week, to better inform Congressional efforts on expanding access to medicines for American consumers.

Israeli Patent Attorneys Urge Vidal to Reassign Reddit Examiner’s Application

Representatives of intellectual property provisional organizations in Israel, including the Israel Patent Attorneys Association and the Israeli AIPPI, recently wrote to U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal to voice concerns relating to the anonymous examiner who several weeks ago took to Reddit to discuss examining the patent application of an unidentified Israeli defense contractor. Reddit User Snoo_86350 posted to a patent examiner Reddit group explaining that they had been assigned to an application owned by an Israeli military company and that they had mixed feelings about allowing the application after “watching news about Columbia campus protests” and being unable to stop “thinking of Gaza Strip where about 2 million Palestinians live, can’t escape and bombarded.” (sic)

Winning Strategies at the PTAB, Part I: Bring Your Game

Litigating the validity of claims in an inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB) is vastly different from litigating validity in district court. PTAB judges are scientists and engineers, and they are also patent attorneys. They have significant technical training, and most have advanced technical degrees. You can assume they know substantive patent law cold. PTAB judges represent a very different audience from a lay judge or a jury in district court.

Here Come the Qubits? What You Should Know About the Onset of Quantum Computing

While artificial intelligence (AI) may occupy all the limelight from media, stock markets, large and small corporations, not to mention political figures, futurists and modernists know that the mainstreaming of quantum computing will enable the next real technology paradigm shift. From its beginnings in the speculative musings of physicist Paul Benioff in 1980 to the groundbreaking algorithms of mathematician Peter Shor in 1994, quantum computing was a transformative discovery. However, it was not until Google’s establishment of a quantum hardware lab in 2014 that the theoretical promises began to materialize into practical applications.

Tillis Tells Judiciary Committee That Hyper-Focus on Patents Has Led to Lack of Progress on Drug Pricing

The full Senate Judiciary Committee met today to discuss ways to make U.S. prescription drugs more affordable, with a focus on the role patents play in high drug prices. Three of the five witnesses who testified pushed for various legislative and agency actions they claimed would help, while two of the witnesses said the patent system is working and that major changes like the ones proposed would gravely hinder incentives for innovation.

Tillis, Spartz Ask Vidal to Step Up Help to Ukraine IP Office

Senator Thom Tillis (R-NC) and Representative Victoria Spartz (R-IN) sent a letter on Monday to U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal imploring her to take steps to strengthen the Ukrainian National Office for Intellectual Property and Innovations (UANIPIO) in the face of Ukraine’s ongoing war with Russia.

Changes to AI Patent Practice in View of the USPTO’s Recent Actions

The United States Patent and Trademark Office (USPTO, the Office or the Agency) has recently issued multiple guidance and proposed rules that potentially change the landscape of patent practice. On top of that, the USPTO has also proposed substantial terminal disclaimer fee increases that can induce early filing of terminal disclaimers. The Agency’s actions will significantly impact patenting artificial intelligence and it is important to understand the USPTO’s position from a holistic perspective with respect to this critical emerging technology.

The Accelerating Need for IP Protection in Clean Energy

In the dynamic world of renewable energy, companies are quickly innovating new technology and entering the clean energy arms race to generate more energy with less equipment. These innovations are often driven by the introduction of new regulations in furtherance of the federal governments announced goal of reaching 100% carbon-free electricity nation-wide by 2035. Companies can adapt swiftly to regulatory changes resulting from this goal and build their IP portfolios to drive further innovation as well as protect their research and development investment.

Why are the FDA and USPTO Ignoring Requests for Info on I-MAK?

Senator Thom Tillis (R-NC) has been unsuccessfully trying to obtain information from the Food and Drug Administration (FDA) and the United States Patent and Trademark Office (USPTO) on data being used to support drug pricing proposals for nearly two and a half years. More specifically, in a January 31, 2022 letter, Senator Tillis requested an independent assessment and analysis of the sources of data that are being relied upon by those advocating for patent-based solutions to drug pricing. Tillis requested the assessment be completed and provided no later than December 31, 2022—giving the agencies 11 months. The December 31, 2022, deadline has long since come and gone, and according to another letter sent from Tillis to the FDA and USPTO earlier this week, it appears as if the agencies are giving Tillis’ staff the run-around.

Industry Tells USPTO Biden March-In Proposal Undermines Inquiry to Improve IP Commercialization

Two days after comments closed on the U.S. Patent and Trademark Office’s (USPTO’s) Request for Comments titled “Unlocking the Full Potential of Intellectual Property by Translating More Innovation to the Marketplace,” several groups have weighed in to urge the Office not to ignore the link between this topic and the Biden Administration’s recent proposal on march-in rights under the Bayh-Dole Act.

Vidal Addresses ‘Patent Examiner’ Reddit Issue with USPTO Personnel

As we have reported recently, IPWatchdog broke news last week about a Reddit thread dedicated to purported patent examiners in which one examiner asked their peers for advice on how to approach examination of patents that have purposes they may fundamentally disagree with politically–specifically, a patent geared toward Israeli military technology. At the time the story broke, the U.S. Patent and Trademark Office (USPTO) indicated that it does not, as a general practice, comment on “unverified statements by anonymous commenters on Reddit or any other social media platform.”

Patent Filings Roundup: Samsung Challenges Key Patent Innovations Patent, Theseus LF Asset Holdings Entity Launches New Campaign

It was a slow week for new patent filings at the Patent Trial and Appeal Board (PTAB) and above average week for district courts. This week saw only 15 new filings at the PTAB (one PGR and 14 inter partes reviews (IPRs)). Abbott Diabetes Care, Inc. filed one third of the IPRs at the PTAB, challenging three Dexcom Inc. Patents in five IPRs. Amazon filed two IPRs against one Nokia Technologies OY [associated with Nokia Corporation] patent while Voltage LLC filed two IPRs challenging two Shoals Technologies Group, LLC patents. Pictiva Displays International Ltd. [associated with Key Patent Innovations Limited] had one patent challenged in an IPR by Samsung (discussed below).

Panelists Push for Predictability at IPWatchdog’s 2024 Patent Litigation Masters Program

“Make it happen.” That was the request U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman made of attendees of IPWatchdog’s Patent Litigation Masters 2024 program on Monday, imploring them to “think creatively” to solve the intellectual property problems of today. Pointing to developments such as the Unified Patent Court (UPC), Newman said “it’s a time of change and flux, and we can learn a good deal, not only from the UPC, but the way the law is developing in jurisdictions like Japan and China.”

Tillis, Issa, Kiley Ask Vidal to Investigate Issues Raised by ‘Patent Examiner’ Reddit Thread

Last week, IPWatchdog’s CEO and Founder Gene Quinn exposed a “Patent Examiner Reddit” thread in which a purported examiner asked peers for advice on how to approach examination of patents that have purposes they may fundamentally disagree with politically. Now, Senator Thom Tillis (R-NC) and Representatives Kevin Kiley (R-CA) and Darrell Issa (R-CA) have sent a letter to U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal asking the Office to conduct a review into that matter, as well as “a broader investigation into whether there is a pattern of patent examiners substituting their own preferences and beliefs for the law and USPTO guidance.”

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