Posts in Legislation

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.

Emerging Anti-IP Policies the Focus of Heritage Foundation Event

At today’s Heritage Foundation event in Washington, D.C., titled Restoring American Leadership in Patent Law and Innovation Policy, former U.S. Patent and Trademark Office Director (USPTO) Andrei Iancu began by lamenting the failure of decision makers to make the connection between intellectual property and innovation. Increasingly, policy makers think innovation just happens, Iancu explained, with too many believing monetization happens after the fact, rather than driving innovation. “Without IP, the free market does not participate, or does not participate to scale,” Iancu told the Heritage audience. Laurie Self, Senior Vice President and Counsel, Government Affairs, Qualcomm, agreed with Iancu and added that, without a strong patent system, there is no opportunity to maintain a strong innovation leadership position. Presumably alluding to developments such as the Biden Administration’s support for waiving IP rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) related to COVID-19 inventions and the recent Executive Order on Competition, Self said: “We are seeing a series of policies that if implemented would undermine our system… this cognitive dissonance is a threat.”

Implications of Russia’s New Rules on Geographical Indications for Champagne and Cognac Producers

On July 2, 2021, amendments to the Federal Russian Law No. 468-FZ dated December 27, 2019 “On Viticulture and Winemaking in the Russian Federation” came into force. The amendments introduced two new important rules that change the existing legal regulation on geographical indications (GIs) and appellation of origin of goods (AOGs). According to the amendments, foreign producers of champagne should relabel their products imported to Russia to “sparkling wine”. At the same time, Russian producers now have the right to label their products as “champagne”, including the usage of a special category of “Russian champagne”. In addition, the amendments introduced a new category of alcoholic drink, namely “Russian cognac”.

International Academics Push for TRIPS COVID IP Waiver Hold-Outs to Drop Opposition

One-hundred-twenty-four professors and academics from around the world have penned an open letter supporting India and South Africa’s proposed waiver of certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which they claim will help to combat the COVID-19 pandemic. According to a press release about the letter, the United Kingdom, Ireland, Australia, Brazil, Japan, Norway, Switzerland and the EU continue to oppose the waiver proposal. The United States expressed its support for waiver in May. Over the last several weeks, Europe has doubled down on its opposition to the proposal in ongoing talks.

Green Light for Unitary Patent and Unified Patent Court

The long-awaited EU Unitary Patent and Unified Patent Court (UPC) looks likely to be launched in 2022, after Germany’s top court rejected two challenges to ratification on Friday, July 9. In its decision, the Federal Constitutional Court rejected both the applications for preliminary injunction directed against the Act of Approval to ratify the Agreement of February 19, 2013 on a Unified Patent Court (UPCA). (BVerfG, Beschluss des Zweiten Senats vom 23. Juni 2021- 2 BvR 2216/20 -, Rn. 1-81.)

USPTO Delivers on Senators’ Request for Patent Eligibility Jurisprudence Study

In March of this year, a bipartisan group of senators asked Drew Hirshfeld, who is Performing the functions and duties of the Director of the U.S. Patent and Trademark Office (USPTO), to “publish a request for information on the current state of patent eligibility jurisprudence in the United States, evaluate the responses,” and provide the senators with a detailed summary of the findings in order to assist them as they consider appropriate legislative action. The letter gave a deadline of March 5, 2022 to submit a report on the topic. Now, a Federal Register Notice (FRN) scheduled to be published July 9 is requesting answers and input from stakeholders to 13 questions/topics to assist in that effort, according to a publicly posted draft of the FRN.

Will Trump Class Actions Against Social Media Platforms Revive Section 230 Debate?

Former President Donald J. Trump announced today that he is suing Facebook, Twitter and Google/YouTube in separate class action suits, claiming, among other allegations, that the platforms have “increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Act, 47 U.S.C. § 230, and willful participation in joint activity with federal actors.”… All three complaints take aim at Section 230 of the Communications Decency Act of 1996, dubbing it “[l]egislation passed twenty-five (25) years ago intended to protect minors from the transmission of obscene materials on the Internet, and to promote the growth and development of social media companies” that has outgrown its original intent and enabled each of the companies to become behemoths who censor content of their choosing.

Celebrating U.S. Trademark Law: Happy 75 to the Lanham Act

As the United States today celebrates the 245th anniversary of its independence, the intellectual property (IP) community will tomorrow be celebrating the 75th anniversary of the Lanham Act, which was signed into law by President Harry S. Truman on July 5, 1946. The Lanham Act was introduced by Fritz Garland Lanham, who was born in Weatherford, Texas in 1880. He was elected to Congress in 1919 and reelected 13 times before he retired in 1947, the year the Lanham Act was enacted. Lanham’s father was a lawyer and served as a Congressman as well as the 23rd governor of Texas.

A Recent Senate IP Subcommittee Hearing Demonstrates the Danger of Patent Fallacies

During the Senate Judiciary’s Subcommittee on Intellectual Property hearing, titled Protecting Real Innovations by Improving Patent Quality, held on June 22,  Jorge Contreras, Presidential Scholar and Professor of Law at the S.J. Quinney College of Law of the University of Utah, testified under oath that patents are effectively the same thing as products, and seemed to suggest that executive fraud unrelated to patents must make the patents fraudulent too. This, of course, is a fallacy. It shows a fundamental and deep misunderstanding of what patents are and how they work, and completely misrepresents law and logic. If taken seriously, Contreras’ testimony would destroy the value of virtually every patent portfolio and further chill investment in new technologies. It is an alarming position coming from a patent lawyer and credentialed law school professor who claims he is “intimately familiar with the topic of today’s hearings.”

‘Decoupling’ with China is Not the Answer

We’ve all seen him when driving by the strip mall. Trying to focus on the traffic, our eyes are diverted by “Tube Man,” a 10-foot tall hollow, collapsible stick figure with a fan at the bottom, adjusted so that the body repeatedly folds and then jumps upright, with arms whipping around in a constant frenzy, trying to grab our attention. And that’s the point. Tube Man accomplishes nothing except to demand that we look at what he’s doing…. And that, in my view, describes very well the recent rush of legislative attempts to punish China. That is not to say that China is our best friend. We are in serious competition, and it’s obvious that our leading position in some critical technologies has been targeted. That “giant sucking sound” you hear in the direction of China may be some cutting-edge secrets being displaced. We should be deeply concerned. We need a thoughtful, long-term strategy to respond.

Senate IP Subcommittee Mulls Ways to Improve Patent Quality (Again)

The Senate Judiciary Committee’s Subcommittee on Intellectual Property on Tuesday heard from four witnesses on the topic of “Protecting Real Innovations by Improving Patent Quality.” The topic has been addressed by the Senate IP Subcommittee before, and long-debated in patent circles generally. Under the leadership of its new Chairman, Senator Patrick Leahy (D-VT), the Subcommittee now seems to be revisiting the conversation and looking for practical fixes.

Reintroduced International Cybercrime Prevention Act Would Create New Cybercrime Violations, Increase Forfeiture and Injunctive Relief

On June 17, a bipartisan coalition of U.S. Senators, including Thom Tillis (R-NC), Sheldon Whitehouse (D-RI), Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) reintroduced the International Cybercrime Prevention Act for consideration by the upper house of Congress. If passed, the bill would enact provisions giving additional power to law enforcement for seizing devices used for cyber attacks as well as create new criminal violations for individuals who knowingly engage in cyber attacks on critical national infrastructure.

EU Offers Alternative to COVID-19 IP Waiver That Supports Innovation and Addresses Supply Chain Problems

On June 4, the European Commission submitted to the World Trade Organization (WTO) its proposal for improving access to COVID-19 vaccines and treatments in countries suffering from vaccine shortages. The plan was submitted as an alternative to other proposals that would eliminate international patent rights for COVID-19 vaccines and treatments under the premise that such action would improve vaccine access in poorer countries. While the EU alternative contemplates the possible use of compulsory licensing, it addresses supply chain issues that will help to inoculate the entire globe against COVID-19 much more quickly than any patent waiver could ever hope to accomplish.

Biden is Missing an Opportunity at the USPTO

Intellectual property (IP) made modern vaccines possible. It took billions of dollars in private and public investments in research and development to be able to create, in record time, multiple viable vaccines to fight the COVID-19 pandemic. The entire world should be celebrating the innovators that continue to push forward with new solutions to problems we will face in the future. This pandemic will end, but there will be another. We should be eternally grateful to have companies like Pfizer, Moderna and Johnson & Johnson that have the capability to create and manufacture vaccines at large scale…. It has been over four months since President Biden’s inauguration. As of yet there has not been a nomination for the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO). In addition to running the USPTO, the Director is responsible for advising the President on intellectual property issues. I believe that President Biden would have benefitted from an experienced voice knowledgeable about the dangers of supporting the erosion of property rights during the discussions on whether to support India and South Africa’s proposal to the World Trade Organization to waive IP protections under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Reflections on Unintended Consequences of Proposed Patent Law Amendments

Senators Leahy and Tillis have proposed another patent law amendment for the Endless Frontiers Act (SA 2060). No defense or damages limitation has ever turned on the niceties of recordation of ownership at the USPTO. This would be a sea change in patent law. Something so radical at least should rise or fall based on thorough and thoughtful legislative debate, investigation and committee work, including testimony by experts in real estate law and patent practice.