Posts in Legislation

The House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet today held the first of several planned hearings about the impact of artificial intelligence (AI) on intellectual property, focusing in this initial hearing on copyright law. The witnesses included three artists, a professor, and an attorney with varying perspectives on the matter, although the artists all expressed similar concerns about the potentially dire effects of generative AI (GAI) applications on their respective industries and careers.

On day one of IPWatchdog’s Patent Litigation Masters program yesterday, the U.S. Supreme Court denied two patent eligibility cases that the U.S. Solicitor General had recommended granting. The denials make it fairly clear that the High Court is not interested in helping to resolve the current problems with U.S. patent eligibility law, which generally have to do with a lack of clarity, arguably fostered by many of the Court’s own precedents. Following the last panel of the day on Monday, in which speakers discussed ways to improve and streamline patent enforcement in America, retired U.S. Court of Appeals for the Federal Circuit Chief Judge Paul Michel told IPWatchdog he thinks the Supreme Court’s refusal to take up patent eligibility is self-serving. “I think the Court doesn’t want to admit they messed up the law in the four decisions – Bilski, Myriad, Mayo and Alice. They don’t even admit that it’s a big problem, but it is a huge problem, and everybody in the patent world knows it’s a huge problem,” Michel said.

Last month, the U.S. Department of Justice filed an amicus brief with the Supreme Court urging the Court to accept a certiorari case relating to patent eligibility. See Interactive Wearables, LLC v. Polar Electro Oy, et al, and David A. Tropp v. Travel Sentry, Inc., Nos. 21-1281 and 22-22. In each of these cases, which were separate from one another, the U.S. Court of Appeals for the Federal Circuit ruled the patents to be ineligible as being abstract ideas, and thus an exception to Section 101 patentable subject matter. This amicus brief follows an earlier amicus brief from the Justice Department, in May 2022, also supporting the petition for certiorari on a patent found by the Federal Circuit to be an abstract idea, and therefore not patentable under Section 101.

There is little doubt that the way patent rights are viewed and protected has transformed over the last 15 to 17 years. The patent system our government has enabled over that timeframe incentivizes stealing patent rights rather than engaging in an arm’s length negotiation. This is antithetical to basic, fundamental principles embedded throughout American law, and has caused dispute resolution, licensing and enforcement to emphatically derail.

On April 27, a pair of legal measures were advanced within the European Union that promise to greatly impact the state of technological commercialization within Europe for both standardized and artificial intelligence (AI) technologies. While political leaders in the EU maintain that either proposal addresses consumer safety and competition concerns, multiple commentators have pointed out issues that could slow the rate of technological commercialization to the detriment of Europeans across the continent.

Today’s hearing of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet on Oversight of the U.S. Patent and Trademark Office (USPTO) demonstrated some confusion on the part of Congress about the intent of USPTO Director Kathi Vidal’s recent Advanced Notice of Proposed Rulemaking (ANPRM) on changes to Patent Trial and Appeal Board (PTAB) processes, and suggested the Subcommittee members believe she may be exceeding her authority.

On April 18, 2023, Senator Chris Coons (D-Del), Chairman of the Senate Subcommittee on Intellectual Property, and Senator Thom Tillis (R-NC), Ranking Member of the Subcommittee, convened a substantive bipartisan hearing to discuss how to address “Foreign Competitive Threats to American Innovation and Economic Leadership.”  Significantly, Chairman Coons asked Mark Cohen, Director and Distinguished Senior Fellow at the Berkeley Center for Law & Technology, the about the impact of the Supreme Court’s decision in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), which Chairman Coons observed, “made it difficult to get injunction relief in terms of strengthening the fundamental rights of patent holders.”

The European Union is reportedly considering sweeping new regulations for the licensing and litigation of standard essential patents (SEPs), which make fair-minded observers wonder whether any sane adults are in charge at the European Commission (EC). The EU’s proposed new regulatory regime is scheduled to be released on April 26 by the Directorate for the Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) of the European Commission (EC). And recently leaked drafts suggest that proposal will contain sweeping new regulations that will effectively put an end to the licensing and litigation of SEPs as it exists today.

In late March, news broke that the European Commission was drafting sweeping regulations on the licensing of standard essential patents (SEPs). Commentators predict the draft will be released in late April and, although this is an early draft that will likely evolve, below we offer the following initial observations. In its current form, the new regulatory framework would encourage increased transparency in SEP licensing through several new policies and procedures. In particular, the regulations would establish a “competence center” at the European Union Intellectual Property Office (EUIPO) to act as a sort of clearinghouse for SEP issues (both technical and economic). The EUIPO does not currently have patent expertise; EP patents are the purview of the European Patent Office (EPO), which is separate from the European Union and includes non-EU members.

It was a hot August afternoon in 1984, and I had just finished testifying to the California Senate committee considering a new law, the Uniform Trade Secrets Act (UTSA). I had been sent to Sacramento to support this legislation, which was supposed to provide a “uniform” standard among the states. But some lawyers from the State Bar were pushing for changes that I thought might cause problems. One of these was to remove the requirement that a trade secret owner prove the information was not “readily ascertainable.” If you’re still reading, well done! You’ve demonstrated your intellectual curiosity. Please keep going; I promise this will not be a dry, academic rant about something that can’t possibly matter to you. Instead, this is a story about the unintended consequences of casual law-making and the ways that courts can amplify those effects without really understanding what they’re doing.

Perhaps after their favorite theory was blown apart again, as it has been every time it’s been trotted out over the past 20 years, the critics of the Bayh-Dole Act learned a painful lesson. Their carefully constructed thesis that the law contains a hidden provision allowing the government to set prices on successfully commercialized products has been summarily rejected by every Democratic or Republican Administration which has considered it. They say the definition of insanity is doing the same thing repeatedly while expecting a different result. But that didn’t keep the proponents from refiling the same petition which was rejected three times in the Obama-Biden Administration. So once again, the National Institutes of Health (NIH) denied the request that it should “march-in” under the law against the prostate cancer drug, Xtandi, because critics felt it is not “reasonably priced.” Apparently, the petitioners thought that the fourth time would be the charm. Now they know better. And this time, NIH included a subtle, but fatal blow to attempts to go down this path again.

Today, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) published a Patient Access Report profiling the many ways in which drug pricing controls, often enacted in the name of ensuring widespread access to low-cost medicines, actually result in less access to innovative medicines that are more widely available in free markets. The GIPC’s report comes at a time during which the Biden Administration has taken recent action on drug pricing provisions included in the Inflation Reduction Act passed into law last August, which could have deleterious effects on patient access in the United States.

Innovation is the foundation of America’s ability to compete in a global economy, and the cornerstone of America’s foundation is our patent system. This is especially true when it comes to American leadership in life sciences. Yet, Washington is debating proposals, driven by political narratives, that will limit the availability of patents and that fail to consider the impact on innovation and American competitiveness. Our founding fathers inherently understood that entrepreneurship ran deep within the fabric of our country and that a system was needed to unlock its genius. Developed by our founding fathers, the patent system has evolved with the times and continues to set the global standard on supporting inventors of all stripes. Decisions made by George Washington, Thomas Jefferson, and others continue to provide the legal certainty necessary for investors to support research and development.  

Following an incredibly contentious vote for Speaker of the House, it has taken some time for Congressional subcommittees to take shape. However, at least the Republican membership of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet has taken shape in recent days, featuring a couple of well-known politicians whose efforts on patent system reforms have represented the interests of either end of the world of IP system stakeholders. The House IP Subcommittee during the 118th Congress also contains several incoming Representatives, including a few that have had some engagement with IP matters prior to joining the subcommittee.

As Robert Frost poetically noted, two roads diverged in the woods he was exploring. One road was well trod, easy to traverse, and the other less traveled, difficult and getting weedy. Sadly, although Americans pride themselves on innovation, American innovation, particularly inventorship, is now the difficult road. Bad decisions made in previous forks in the road have gradually undermined the innovative spirit in our nation, but some inventors in Washington, DC, next week want to change course before we automatically go down the well-trod path.