The House of Representatives’ Subcommittee on Courts, Intellectual Property, and the Internet today held a hearing titled “IP and Strategic Competition with China: Part II – Prioritizing U.S. Innovation Over Assisting Foreign Adversaries,” which focused on the World Trade Organization’s (WTO’s) agreement on a waiver of IP rights for COVID-19 vaccine technologies under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) last June. All of the panelists agreed that COVID-19 is no longer a public health emergency and that an extension of the waiver to diagnostics and therapeutics is likely unnecessary.
In 2015, China launched its 2025 Initiative listing all the technologies and industries it wants to control by 2025. So far, they have been successful in leading 37 of 44 technologies critical to economic growth and national security. The nation that dominates these technologies will determine the fate of all nations. In the past, the United States led the world in technology, but today it is China. How did this happen? This damage was caused by a series of big hits by the courts, congress and the U.S. Patent and Trademark Office (USPTO). The first big hit was eBay vs. MercExchange (eBay) in 2006. In order to obtain an injunction, a patent holder must prove that they not only have a patented product on the market, but also the ability to distribute that product. eBay let loose massive predatory infringement, killing off startups, the biggest competitive threat to Big Tech and many other industries.
The Chairman of the House of Representatives’ Committee on Oversight and Accountability, James Comer (R-KY), announced an investigation this week into accusations raised by former Federal Trade Commission (FTC) Commissioner Christine Wilson in her resignation against the conduct of FTC Chair Lina Khan. Wilson sent a letter to President Joe Biden in March claiming that his appointment of Khan as Chair brought “an abrupt halt” to Biden’s promised “return to normalcy” for the agency. She said that Khan “scorned and sidelined” knowledgeable career staff, in part by imposing a gag order on staff “that prevented them from engaging in consumer and business education — a vote of no confidence in our staff and a disservice to those we serve.”
Former Director of the U.S. Patent and Trademark Office (USPTO) Andrei Iancu, who is now a partner with Irell & Manella, told attendees of an Orrin G. Hatch Foundation webinar today that many of the proposals in the USPTO’s recent Advance Notice of Proposed Rulemaking (ANPRM) on Patent Trial and Appeal Board (PTAB) practices should be legislated by Congress. Particularly on issues that were statutorily prescribed, such as the standard patents are reviewed under at the PTAB versus the courts, the timing for filing petitions, and who can bring an inter partes review (IPR) proceeding, Iancu said the better route to certainty is through Congress.
In response to last week’s hearing of the House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet about the impact of artificial intelligence (AI) on copyright law, former Copyright Office General Counsel, Jon Baumgarten, submitted a letter this week to the Subcommittee expressing his concerns with the testimony of one of the witnesses, Sy Damle of Latham & Watkins, who also formerly served as U.S. Copyright Office General Counsel. The letter was published in full on the Copyright Alliance website.
This week in Washington IP news, Congress is having a relatively quiet week, but the House will further discuss the impact of Pharmacy Benefit Managers on patients and the pharmaceutical industry. Elsewhere the U.S. Patent and Trademark Office (USPTO) is holding an event offering guidance on how women entrepreneurs can seek startup capital.
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.
This week in Washington IP news, artificial intelligence is the hot topic of the week with the Senate and House both holding hearings on the subject. OpenAI CEO Sam Altman will testify before the Senate as the young tech entrepreneur becomes the face of the emerging industry. Elsewhere, the USPTO is hosting a day-long expo on innovation in the green energy sector.
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.
This week in Washington IP news, both houses of Congress are busy with hearings that touch on subjects relevant to IP. Both the Senate and House will be holding hearings on two hot-button issues: semiconductor supply chains and prescription drug pricing. Elsewhere, the USPTO is holding an AI inventorship listening session on the West Coast.
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.
This week in Washington IP news, the World Intellectual Property Organization (WIPO), the United States Patent and Trademark Office (USPTO) and others celebrate World Intellectual Property Day with multiple events. A House subcommittee holds a hearing overseeing recent developments at the USPTO. The Senate is also in session as it discusses the two new finalized rules from the Small Business Administration on expanding capital access to small businesses.
The Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing today featuring a panel of patent-savvy witnesses to underscore the crucial role intellectual property plays in the U.S. economy and to define the biggest threats to IP rights, both foreign and domestic. The conclusion of most panelists as to what one step is most important in reestablishing the United States as an IP powerhouse was that we need to clean up our own IP system at home in order to even begin addressing threats from foreign competitors like China.
Just when you think you have enough things to worry about, you stumble upon one more. In its wisdom, Congress enacted a “Medicare Drug Price Negotiation Plan” as part of the Inflation Reduction Act. The program kicks in by imposing “maximum fair prices” for drugs as determined by the Centers for Medicare & Medicaid Services (CMS). In setting these prices, Congress included such factors as the R&D costs for each drug and whether they have been recovered and the current cost of producing and distributing the drug in question. But it was the third criteria which caught my eye—“Prior Federal financial support for novel therapeutic discovery and development with respect to the drug.”
This week in Washington IP news, the Senate and House are back in session and holding a variety of hearings on departments’ 2024 budget requests, including for the Department of Commerce and the National Science Foundation (NSF). Elsewhere, the Council for Innovation Promotion (C4IP) is holding a webinar on proper use of Section 1498(a) of the U.S. Code; and the United States Patent and Trademark Office (USPTO) is hosting regional events in Central Virginia and Silicon Valley to promote resources available to prospective innovators and entrepreneurs.