Posts in Government

The Campaign Against Pharma Companies Creates New Level of Uncertainty for all Patent Attorneys Re: Duty of Disclosure and Inquiry

The United States Patent and Trademark Office (USPTO) issued a Notice on the “Duties of Disclosure and Reasonable Inquiry During Examination, Reexamination, and Reissue, and for Proceedings Before the Patent Trial and Appeal Board” on July 29, 2022 (87 FR 45764-67), without a big reaction from the IP community. Patent attorneys mostly scratched their heads wondering what it means, especially as it was created in the backdrop of an attack on drug companies and drug pricing. The attack was motivated by a now largely discredited disinformation campaign by the advocacy group I-MAK (Initiative for Medicines, Access and Knowledge; an oxymoron), based on non-peer reviewed erroneous patent data analysis (see supporting false analyses by Univ. of Calif. Hastings Law School “Evergreen Drug Patent Search” and R. Feldman, “May your drug price be evergreen” J. Law and Biosciences Vol 5(3) Dec 2018, 590-647). Notwithstanding, the White House and certain members of Congress picked up I-MAK’s “Overpatented, Overpriced” faulty advocacy piece (2018; updated Sept 2022), and without checking the integrity of the data, quoted to it, and got to work.

ITC Year in Review: From New ALJs to the Effects of Global Crises, 2022 was an Exciting Time for the Commission

This year was a busy one for the International Trade Commission (ITC) compared to the last few years. As of December 15, 2022, there were 56 complaints filed, compared to 50 in all of 2021. The Commission also instituted more investigations in 2022 than 2021 and has a higher number of active cases compared to last year, according to Docket Navigator as of December 7, 2022. With in-person hearings resuming, it is an exciting time at the ITC. And with the evolving landscape of venue jurisprudence in the district courts, we expect the growth to continue into 2023. This article highlights a few new developments at the ITC over the past year, as well as several important decisions.

PTAB Year in Review: Five Developments from 2022 that Shaped the Future of the Board

Another year down, and another year of interesting developments as the Patent Trial and Appeal Board (PTAB) continued its reign as the most significant patent court in the country. Last year ended with a growing sense that change was on the horizon with President Biden’s nomination of Director Kathi Vidal. And that change did arrive as Director Vidal was confirmed in April and quickly worked to reform PTAB policies. Let’s take a look at the five most significant developments involving the PTAB this year.

The Top 10 Patents of 2022: AI Animation from Textual Inputs, Using 5G Networks to Improve Elderly Health, and Ensuring User Privacy in Virtual Environments

Taking a look back at the previous year of patents granted by the U.S. Patent and Trademark Office (USPTO) always affords an interesting view of the state of technologies being developed around the world. At the end of each calendar year, IPWatchdog puts together a list of the Top 10 most interesting patents granted by the USPTO during the previous 12 months. Many of this year’s choices involve major patent or IP stories from 2022, including our top selection, which claims a technology implicating artificial intelligence creatorship issues. Other patents selected for this year’s list protect advancements representing our society’s increased reliability on virtual environments for gaming and even business activities. We hope you enjoy this Top 10 list, and feel free to leave suggestions for honorable mentions in the comments to this article. Here’s to a happy and innovative 2023!

The Top U.S. FRAND / RAND Licensing Developments of 2022: Policy Statements, Patent Pools and IEEE Changes

While 2022 was somewhat less eventful than 2021 in terms of significant developments in fair/reasonable and non-discriminatory (FRAND/RAND) licensing occurring in the United States, the past year still did not disappoint and underscores the continued and growing interest from government in the standards related patents space. In 2022, the most progress was made on matters and issues we wrote about last year: i.e. government policy developments, Continental v. Avanci, the IEEE’s standards-related Patent Policy, and Ericsson v. Apple / Apple v. Ericsson  (see here and here)

Trademarks in 2022: Recounting the Most High-Profile Trademark Developments of the Year

This year saw an increased focus on the extraterritorial application of the Lanham Act, setting up a showdown at the Supreme Court in 2023. The last year also saw cases pressing the intersection of the Lanham Act with the First Amendment and artistic expression—both in the physical world and in the metaverse—and some rulings that will help clarify the likelihood of confusion analysis in various circuits.
As 2022 comes to an end, we look forward to what 2023 has in store.

This Week in Washington IP: How to Become an Administrative Patent Judge, A Debate on Cryptocurrency Regulation, and What is the Future of the U.S.-Japan Relationship

This week in Washington IP news, the USPTO is hosting an event on becoming an Administrative Patent Judge, and the Brookings Institute is hosting a debate on cryptocurrency regulation.

AI Year in Review: A Busy 2022 for AI and IP Promises Even More in 2023

In general, the adoption of artificial intelligence (AI) and machine learning technologies has the potential to impact society in many ways. These technologies can automate tasks and make them more efficient, which can lead to job displacement and other economic impacts. They can also be used to make decisions that affect people’s lives, such as in the criminal justice system or in hiring, which raises ethical concerns. Additionally, the development and use of AI and machine learning technologies can raise issues related to privacy and security. What could be a more fitting way to open a 2022 year-in-review article on AI and machine learning than by asking OpenAI’s newly beta-released ChatGPT tool to contribute? The above paragraph was generated using ChatGPT’s conversational, chat-based dialog input. The initial request of ChatGPT was the prompt: “Explain the social impacts of artificial intelligence and machine learning technologies over the past year.”

USPTO Guidance Reduces PTAB Discretionary Denials, Signaling Potential Uptick of IPRs in 2023

The appointment of USPTO Director Kathi Vidal in April 2022 and her introduction of interim guidance in June 2022 has spurred changes at the Patent Trial and Appeal Board (PTAB) that may result in an increase in instituted inter partes reviews (IPRs) due to a dramatic decline in discretionary denials. Under the reign of former U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu, the number of discretionary denials of IPR petitions had steadily increased over the last five years, in part due to the application of the PTAB’s 2020 precedential decision in Apple Inc. v. Fintiv, Inc.

Bringing Unwilling Licensors to the Table

Some months ago, two courts in Germany granted injunctions against Oppo, one based on a standard essential patent (SEP), and another on a non-SEP related to Wi-Fi. Rather than cave to the demands of Nokia, Oppo has since decided to pull its products out of the German market. Since then, some commentators have claimed that this is another example of so-called “implementers” engaging in hold out. They point to the need for strong injunctive relief in order to force these “unwilling” licensees to the table.

As IP Waiver Extension Deadline Approaches, Advocacy Groups Call on WTO Director-General to Step In

A group of more than 160 charities, non-governmental organizations (NGOs), advocacy organizations, and others sent a letter today under the banner of the People’s Vaccine Alliance to World Trade Organization (WTO) Director-General Dr. Ngozi Okonjo-Iweala imploring the WTO not to accept the proposed delay of a decision to extend waiver of IP rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to therapeutics and diagnostics. The Office of the United States Trade Representative (USTR) on December 6 announced support for delaying the deadline on an extension decision.

Deadline to Register as a Speaker at the Public Listening Session on USPTO-FDA Collaboration Efforts Almost Here

he United States Patent and Trademark Office (USPTO) sent out a reminder today to those interested in speaking at an upcoming Public Listening Session on collaboration efforts between the USPTO and Food and Drug Administration (FDA) that they must sign up to participate by January 5, 2023. The listening session will be held on January 19, 2023. Speakers must attend in person. Those who just wish to listen, virtually or in person, must register for the event by January 17, 2023. The Federal Register Notice announcing the listening session and request for comments on the subject was published on November 7, 2022 and relates to a joint July 2022 announcement of the USPTO and FDA that the Office plans to execute a number of initiatives aimed at lowering drug prices, as directed in July 2021 by President Joe Biden’s “Executive Order on Promoting Competition in the American Economy.”

Webinar Panelists Say Vidal Should Have ‘Thrown a Thunderbolt’ at OpenSky Case

During an IPWatchdog-hosted webinar held today, panelists reflected on the impact that U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal has had on the Patent Trial and Appeal Board (PTAB) so far and called her handling of the VLSI v. OpenSky case a “giant missed opportunity” to create a roadmap for how the Office will handle bad faith behavior.

This Week in Washington IP: Pride in Patent Ownership Bill Back on Senate Agenda, IPWatchdog Webinar Reviews Vidal’s Impact on PTAB, and USPTO Hosts Boardside Chat with Deputy Director

This week in Washington IP news, the Senate Judiciary Committee is holding an Executive Business Meeting in which they will discuss the Pride in Patent Ownership Act, while several Senate subcommittees hold hearings related to American manufacturing, diversity in entrepreneurship, and increasing access to capital in underserved markets. Elsewhere, IPWatchdog is hosting a webinar discussing USPTO Director Kathi Vidal’s tenure, the USPTO will host a virtual Boardside Chat with Deputy Director Derrick Brent, and the CSIS looks at the latest meeting of the U.S.-EU Trade and Technology Council (TTC).

As Deadline on COVID IP Waiver Extension Looms, LMICs Propose Text, U.S. Supports Delay, and Organizations Speak Out

A number of lower-income countries (LMICs) on Tuesday, December 6, proposed new text to the World Trade Organization (WTO) urging them to adopt it and proceed with an extension of the waiver of IP rights for COVID-19-related technologies under the Agreement on Trade-Related Aspects of IP Rights (TRIPS). The text was sent following the United States’ announcement on the same day that it supports a delay of the deadline to decide whether to extend the waiver to diagnostics and therapeutics pending an International Trade Commission investigation that the Office of the United States Trade Representative (USTR) has ordered.