Posts in Legislation

Opinion: Growing Misuse of Patent Protections Threatens U.S. Competitiveness and Security

The chaotic state of the world today makes it increasingly difficult for American companies to compete. Russian hostility has the democratic world on edge, U.S. inflation is at a 40-year high and hitting consumers hard, and China continues its aggressive push for economic and technological dominance.  To stay on top, the United States must out-innovate our competitors. America needs to lead the world in cutting-edge products and new technologies, and those are made possible by policies that support the innovation economy. The Ukraine crisis makes it clear that energy and cyber policy is crucial. Recently, the U.S. Trade Representative told Congress that supporting and protecting the full range of our innovators from China’s distortive practices is critical to our nation’s future.

Money, Media, Votes, and Passing H.R. 5874

All things in Washington are driven by money, media and votes. If you can deliver one or more of those things, you will get the results you want. Engaging in politics with this in mind is key to fixing the broken patent system by passing HR 5874, the Restoring American Leadership in Innovation Act (RALIA). Since no mortal can compete with Big Tech’s big bucks and their control of social media, and the media in general, the only lever remaining is delivering votes back home, or more importantly, delivering those votes to candidates who commit to supporting HR 5874.

U.S. Chamber of Commerce Expresses Support for New Bills Limiting Power to Waive TRIPS Rights

The U.S. Chamber of Commerce yesterday published a letter it sent to members of congress expressing strong support for both the “No Free TRIPS Act” and the “Protecting American Innovation Act.” According to the letter, if enacted, these bills “would prohibit the Administration from negotiating or concluding any modifications to the World Trade Organization (WTO) Trade-Related Aspects of Intellectual Property (TRIPS) agreement, without the explicit authorization of Congress.” The Chamber is concerned about the potential impact of the proposed waiver of patent rights for COVID-19 vaccine technology. The letter comes after the European Union, United States, India and South Africa reached a compromise on language for waiver terms last month.

NAPA to Take On Tillis’ Unified IP Office Study

The National Academy of Public Administration (NAPA) has agreed to perform a study requested earlier this month by Senator Thom Tillis (R-NC) to explore “whether Congress should create a unified, stand-alone, and independent Intellectual Property Office.” NAPA President and CEO Teresa Gerton said its full-time research staff and Academy Fellows are well-positioned to do the work requested and that NAPA would begin discussions with the U.S. Copyright Office and the U.S. Patent and Trademark Office (USPTO) immediately. However, Gerton expressed some skepticism, cautioning that “our success in these negotiations depends greatly on the willing participation of these two agencies and the level of funding they agree to make available for the work.”

SMART Copyright Act Would Broaden Definition of Copyright Protection Tools to Be Designated as Standard Technical Measures

Earlier this month, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act into the U.S. Senate. The bill is designed to address shortcomings with some of the statutory provisions of the Digital Millennium Copyright Act (DMCA) which have failed to incentivize the development of new technical measures for preventing copyright infringement online the way that Congress originally envisioned when passing the DMCA in 1998.

Senators Tell Raimondo COVID Waiver Compromise Would Be a ‘Gift’ to China and Russia

Senators Thom Tillis (R-NC), Tom Cotton (R-AR) and Marsha Blackburn (R-TN) sent a letter yesterday to Secretary of Commerce Gina Raimondo expressing their “grave concerns” with the compromise language agreed on recently in the ongoing talks to waive intellectual property rights for COVID-related technology under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. On March 15, the European Union, United States, India and South Africa announced the compromise language. The text is not final and still must get official approval from all 164 World Trade Organization (WTO) member countries.

It’s Time for NIH to Uphold the Law, Once Again

As discussed previously, the critics are in full howl now that their attempts to enact legislation controlling drug prices has failed once again. They are applying unprecedented political pressure on Secretary Xavier Becerra at the Department of Health and Human Services (HHS) to misuse the march in provisions of the Bayh-Dole Act to accomplish their goal. Nearly 100 distinguished organizations and individuals endorsed the following letter from the Bayh-Dole Coalition, which I lead, warning HHS not to take this disastrous misstep. Here’s what we said.

What it Means that Russian Businesses Can Now Legally Steal Intellectual Property from ‘Unfriendly Countries’

Russian businesses now hold the key to pilfering, producing and profiting from western technologies. As of Monday, March 7, the Russian government has legalized intellectual property (IP) theft. With this move, businesses in Russia can now violate IP rights, as they no longer need to compensate patent holders from “unfriendly countries.” The list of “unfriendly countries” includes the United States, Canada, Australia, Switzerland, Norway, Iceland, the United Kingdom, Japan, South Korea, New Zealand, Singapore, Taiwan and all 27 European Union (EU) member countries. Russia has faced growing isolation from the Western world following President Vladmir Putin’s invasion of Ukraine. The United States, EU member countries and others recently initiated sanctions against Russia and have enacted crippling trade limitations. Currently, Russia is sufficiently meeting its supply and demand needs for agriculture, energy and natural resources. However, Russia’s isolation and growing lack of skilled producers have led to a stark decrease in technological production and innovation.

Tillis Forges Ahead with Effort to Create a Unified IP Office

In January of this year, Senator Thom Tillis (R-NC) sent a letter to Matthew Wiener, Acting Chairman of the Administrative Conference of the United States (ACUS), and Todd Rubin, ACUS Counsel for Congressional Affairs, asking that the ACUS “conduct a study on whether Congress should create a unified, stand-alone, and independent Intellectual Property Office.” But Wiener replied to Tillis’ letter on March 7, indicating that ACUS “has neither the expertise nor resources to conduct” such a study. Instead, Wiener suggested asking an entity better positioned to undertake the task, such as the National Academy of Public Administration (NAPA), which Tillis wrote to today.

Senators Take Aim at Chinese Anti-Suit Injunctions with ‘Defending American Courts Act’

A bipartisan group of five U.S. senators have introduced a bill to amend Chapter 28 of Title 35 of the U.S. Code to include language that would “combat corrupt Chinese Courts from issuing ‘anti-suit injunctions,’” according to a joint press release issued by the senators today. Senators Thom Tillis (R-NC), Chris Coons (D-DE), Tom Cotton (R-AR), Mazie Hirono (D-HI), and Rick Scott (R-FL) introduced the bill on March 8. An anti-suit injunction is an injunction issued by a foreign court to limit the rights of parties to pursue litigation in U.S. courts.

China Joins Hague System – Here’s Why You Should Care

An IP announcement that may have slipped past you in the last few weeks is that China will now become a part of the Hague System for the International Registration of Industrial Designs. The Act will officially enter into force on May 5, 2022. Does this make a difference to you and your clients? Yes, in a very, very big way. Back in the mid-1990s, I had a key client operating out of Hong Kong, prior to the transfer of sovereignty from the UK back to China. He had, by then, become the world’s largest “maker” and seller of vacuum cleaners. Yet, he had only a small staff, mostly engaged in shipping and monetary transactions, i.e., paying for and getting paid for goods he bought and sold to vendors across the globe located in developing world economies.

The SECRETS Act Adds a Critical New Defense Against IP Theft Threatening U.S. Tech Leadership

Intellectual property (IP) theft, especially of trade secrets, remains a significant threat to advanced U.S. industries, global competitiveness, and national security. It is foundational to the U.S. trade dispute with China, given state-sponsored efforts to steal as much American know-how as possible. Yet, instead of new laws and regulations, the United States has relied mainly on tariffs in an indirect effort to convince China to curb these illegal practices. That is, until now. As Congress and the Biden administration prepare to finalize competitiveness bills and set the country’s annual defense budget, they have an opportunity to advance another bill that will benefit American businesses and workers by combatting the Chinese threat to U.S. industries—the SECRETS Act, introduced last summer by Sens. John Cornyn (R-TX), Chris Coons (D-DE), and Todd Young (R-IN).

Senate Judiciary Moves Open App Markets Act Forward

On February 3, during an Executive Business Meeting of the Senate Judiciary Committee, Senator Thom Tillis (R-NC) proposed several amendments on the markup of S. 2710, the Open App Markets Act. The bill would apply existing U.S. antitrust law under the Federal Trade Commission (FTC) Act or the Clayton Act for enforcement actions against companies that engage in anticompetitive practices in app stores, such as requiring app developers to use a favored in-app payment system for accessing consumers through that app store.

On Final Day of PTAB Masters™ 2022, Iancu/Panelists Ponder the Road Ahead for USPTO and PTAB

The last day of PTAB Masters™ 2022 featured sessions on dealing with parallel litigation at the International Trade Commission (ITC) and district courts in Patent Trial and Appeal Board (PTAB) proceedings; life sciences and inter partes review (IPR); and the future of the PTAB. On the latter topic, speakers contemplated what lies in wait for the U.S. Patent and Trademark Office (USPTO) Director nominee, Kathi Vidal, who is likely to be confirmed, as well as how certain the Restoring America Invents Act is to be passed, and what changes it may include.

Senate Judiciary Advances American Innovation and Choice Online Act to Ramp Up Antitrust Efforts Against Big Tech

On January 20, the Senate Committee on the Judiciary voted 16-6 to advance S. 2992, the American Innovation and Choice Online Act, out of committee and toward a full vote on the floor of the U.S. Senate. If passed, the bill would give the Federal Trade Commission (FTC), the U.S. Attorney General and state attorneys general new powers to bring antitrust enforcement actions against major online platforms that are alleged to be engaging in discriminatory conduct by preferencing their own products and services over competing products and services that are also available on those platforms.


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