Posts in Legislation

IPWatchdog LIVE Event Wraps Up with Featured Speakers Makan Delrahim and Vishal Amin

On day three of IPWatchdog LIVE in Dallas, Texas, former Assistant Attorney General in charge of the Antitrust Division at the U.S. Department of Justice (DOJ), Makan Delrahim, who is now a Member of the Board of the Directors at Osiris Acquisition Corporation and a Lecturer in Law at the University of Pennsylvania, told attendees of the event that it’s unfortunate that antitrust [and its interaction with intellectual property rights] has become a partisan issue when “it doesn’t need to be.” Delrahim recalled during a Luncheon Fireside Chat with IPWatchdog Founder and CEO Gene Quinn that, 20 years ago, when he was detailed to the Office of the U.S. Trade Representative (USTR), “the approach to strong IP was a unifying issue, and something that was not questioned, nor its value.” He added that he has become a bit discouraged by the “echo chamber” that has been created about IP to “devalue its actual impact on economics and on society”—particularly when our trading partners, like China, have realigned to recognize the value.

Iancu, Kilbride, Israel Separate Fact from Fiction During IPWatchdog LIVE Panel on TRIPS IP Waiver

On Monday of IPWatchdog LIVE in Dallas, a panel on “The TRIPS IP Waiver: Separating Fact & Fiction” was moderated by president and CEO of the PCT learning center and founding partner of Berenato & White, John White, and featured IP leaders Andrei Iancu, Patrick Kilbride, and Chris Israel. The Trade Related Aspects of Intellectual Property (TRIPS) agreement is an international agreement among members of the World Trade Organization (WTO), which sets minimum standards in the international rules governing intellectual property. In 2020, India and South Africa proposed a TRIPS Agreement waiver proposal that would temporarily waive intellectual property rights protections for technologies needed to prevent, contain, or treat COVID-19, including vaccines and vaccine-related products. The proposal has been hotly contested globally, but the Biden Administration said in May of this year that the United States would back it.

USPTO and Copyright Office Reports Attempt to Quantify Extent and Effect of IP Infringement by State Entities

On August 31, at the request of Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT), the United States Patent and Trademark Office (USTPO) provided a report to Congress analyzing infringement disputes between patent and trademark rights holders and states and state entities. The U.S. Copyright Office produced a similar, much lengthier report, also in response to a letter from Tillis and Leahy, studying whether there is sufficient basis for federal legislation abrogating State sovereign immunity when States infringe copyrights. The Senators’ letters were prompted by the March 2020 Allen v. Cooper Supreme Court decision. While the USPTO report came to no conclusions, the Copyright Office found that “the evidence indicates that state infringement constitutes a legitimate concern for copyright owners.”

A Pandemic Can’t Stop Bayh-Dole—But Politicians Might

What would you say about a technology commercialization system that kept on performing even through the worst pandemic in over a century? How about if it improved its performance over the previous year and was a critical factor in developing desperately needed therapies to protect people around the world? Would it seem reasonable that this was something that all of us should highly value and want to protect? You might think so, but some in Washington apparently don’t agree.

Ninth Circuit Reverses Win for the Turtles’ Rights Owners Under California Law on Copyright for Public Performance

The U.S. Court of Appeals for the Ninth Circuit on Monday ruled that California common law on copyright protection does not include a right of public performance, reversing a partial summary judgment for Flo & Eddie, which controls the rights to the songs of the rock band the Turtles. The case began in 2013, when Flo & Eddie sued Sirius XM Radio, Inc. for playing the Turtles’ iconic pre-1972 recordings, such as “Happy Together” and “Elenore.” While AM/FM radio stations do not pay public performance royalties to sound recording owners, digital and satellite radio providers like Sirius XM must pay public performance royalties whenever they broadcast post-1972 music.

Note to Congress: Resist Big Tech Pleas to Weaken Strong Patents in Light of Recent Losses

In recent days, both Google and Apple have lost big patent cases. On August 13, Apple lost a $300 million jury verdict to PanOptis. Also on August 13, Google was found to infringe five Sonos patents at the International Trade Commission (ITC) in an initial determination by Judge Charles E. Bullock, which, if upheld by the full Commission, would block the importation of Google hardware, including Chromecast and Pixels. This likely means that Apple, Google and their big tech allies will use these instances, as well as other recent high-profile patent losses, as evidence of the need for yet more innovation-crippling patent reform. That would be a huge mistake for America at a time when we find ourselves locked in a race for technological supremacy with the Chinese.

Parliamentary Committee Report Outlines Policy Changes to Improve Indian IP Regime

Despite India’s progress in many areas, from science to literature to technology, protection for intellectual property rights (IPR) is a topic that has come under scrutiny. The IP laws in India have remained vastly unchanged and unreviewed over the past few decades. Recently, however, the Parliamentary Standing Committee on Commerce (PSCC) decided to review IPRs in India. The Committee, led by Chairman Shri V. Vijayasai Reddy, was made up of 11 members of the Rajya Sabha (upper house) and 21 members from the Lok Sabha (lower house). On July 23, 2021, the PSCC presented a report to the Rajya Sabha titled Review of the Intellectual Property Rights Regime in India (the Report). In the Report, the Committee pointed out the “challenges in strengthening the country’s IPR regime, the related procedural and substantive constraints, legal aspects and other issues, such as low awareness of IPR, counterfeiting and piracy, IP financing, and IPRs in agriculture and pharmaceutical sector, etc.”

Government Must Reform the ITC to Keep Pace with Innovation and Curb Trolls

In 2001, six years before the iPhone appeared, a futurist named Ray Kurzweil wrote that humankind would cram 20,000 years of technological progress into the century that had just begun. There were skeptics, but today any of the world’s six billion smartphone subscribers can read his essay on their devices practically any time, any place they choose. As we move into an era of Artificial Intelligence (AI), quantum computing, and 5G telecommunications that supports Kurzweil’s vision, we must make sure that our laws and federal agencies match the pace of invention and protect innovators from trolls who would game the legal system and government functions for their ill-gained profit. 

What is a ‘Patent Waiver’ Anyway? Zooming Out on the TRIPS COVID IP Waiver Debate

Scientists, engineers, and everyday people have developed solutions for testing, preventing, and treating the COVID-19 disease. Ordinarily, we wouldn’t think twice about granting patents on these inventions. But, today, when COVID-19 is spreading all over the world and killing millions of people, some world leaders are questioning whether we should be granting the exclusionary rights of patent protection on inventions that help respond to the pandemic. Included in that group is the Biden-Harris Administration, which, in May, announced their support of an “IP waiver” on COVID 19 vaccines. 

Indigenizing the Intellectual Property System

On August 9, we once again observe the International Day of the World’s Indigenous Peoples. Traditionally, international organizations take advantage of this time to promote the contributions of indigenous peoples across the globe. However, the day also presents an opportunity for States and international organizations to reflect on collective efforts to protect and preserve the culture and heritage of our indigenous communities. There are many threats to the rich cultures of our indigenous populations. These threats have remained widely unresolved despite the fact that indigenous peoples make up around 370-500 million of the world population. Included in these overlooked issues is the lack of protection given to the intellectual property (IP) of indigenous peoples. It is high time that we push for more accessible, effective, and durable protective measures for indigenous creations.

Don’t Go Down the Rabbit Hole with the Foes of Bayh-Dole

Sensing an opening after the Biden Administration’s recent Executive Order put a hold on a pending regulation prohibiting the misuse of the march-in rights provision of the Bayh-Dole Act for price control, Congressional opponents of the law dusted off a ploy that failed in the Obama Administration to try their luck again. They’ve written to Secretary of Defense Lloyd Austin and Health and Human Services Secretary Xavier Becerra urging them to march in to control prices of drugs created from inventions arising from R&D their agencies supported. We likened that aspect of the Executive Order to shooting ourselves in the foot, and it seemed as though it would be a while before we would know if the Administration would pull the trigger or not. With the recent Congressional actions, the day of reckoning may not be far off.

U.S. Olympic and Paralympic Committee: The Gold Standard for Trademark Protection

Few events capture the attention of the world like the Olympic Games. Around the globe and across the country, people tune in nightly to watch their nation’s athletes compete for a spot on the medal stand. But behind the breathtaking gymnastics performances and thrilling swimming races is some of the most valuable intellectual property in sports. And the United States Olympic & Paralympic Committee (USOPC)—the organizing body in charge of the nation’s Olympic efforts—is just as serious about defending its trademarks as it is about bringing home the gold.

A Closer, Evidence-Based Look at ‘Patent Quality’ Advocacy

The Patent Infringer Lobby has ramped up banging the drum about “patent quality.” They dedicated a week-long campaign to questioning “patent quality,” which its constituents regard as a huge problem. Advocates have taken advantage of the vacuum left after U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu left the building. Anti-patent advocates are exploiting the new dynamic of Senator Patrick Leahy, coauthor of the America Invents Act (AIA), who now chairs the Senate Intellectual Property Subcommittee. Leahy recently did the Infringer Lobby the favor of holding a hearing on this subject.

Senate Judiciary Committee Advances Legislation to Reduce Drug Prices, Rein in Pharma Industry Practices

Earlier today, the Senate Judiciary Committee held an Executive Business Meeting in which the Committee discussed and favorably reported four bills aimed at reducing prescription drug prices for consumers and curbing perceived abuses of the patent system by brand pharmaceutical companies. The bills would do so by increasing the Federal Trade Commission’s (FTC’s) authority to initiate enforcement actions against drug companies. Senator Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, opened the meeting with an explanation of the need for the bills. He said that nearly 40% of U.S. patients struggle to pay for medication. The world’s best-selling drug, Humira, brought in $16 billion in sales in 2019 and Humira manufacturer, AbbVie, has obtained 130 patents on the drug, with 90% filed after Food and Drug Administration (FDA) approval.

A Third Option: Limited IP Waiver Could Solve Our Pandemic Vaccine Problems

In the early days of the vaccination efforts, Americans were anxiously online trying to register for a COVID-19 vaccination appointment. Reports of success at 1:30 am and 2:30 am made the rounds as new appointments dropped onto websites. Also common were stories of vaccine elitism and discussions of which vaccine is “the best.”  News reports continue to show a steady uptick in the percentage of vaccinated Americans. Elsewhere in the world though, the story is very different, and a darker picture is emerging. In Africa, many countries have vaccinated less than 2% of their population. While vaccine distribution is difficult in many regions of the developing world, this is a hurdle that medical assistance groups, such as Doctors Without Borders, are accustomed to handling. The challenges are known. What is most difficult in combating COVID-19 is obtaining the vaccines in the first place. Some argue that IP rights are the key problem and should be waived, while others claim they are the only solution and that waiver would be catastrophic. This article suggests a third option, somewhere between voluntary vaccine donation and a full waiver of IP rights, that may offer a way forward.