Posts Tagged: "Capitol Hill"

Perhaps the infringer lobby needs a refresher course on the rights granted to a patent owner. 35 U.S.C. § 271(a) says: “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” (emphasis added). So, as it turns out, importation of products covered by a patent during the term of the patent are an infringement of the patent rights granted. Let’s not forget that at the end of the day what these Silicon Valley elite are arguing is that it should be more difficult for a patent owner to stop infringement. The wrong-doers are NOT the patent owners who have the audacity to exercise rights granted by the federal government. The wrong-doers are those who infringe those rights and there is absolutely no reason to make it easier for them to engage in infringement.

It will enhance the development and review of innovative new therapies through increased transparency and scientific dialogue, advancements in regulatory science and strengthened post-market review. It will also increase FDA’s access to external expertise to improve the drug review process. FDASIA will foster timely interactive communication with sponsors during the drug development phase as a core Agency activity to facilitate the conduct of efficient and effective drug development programs and help make safe and effective drugs available to the American public in a timely manner.

The inclusion of an enhanced Accelerated Approval pathway, crafted by Senator Kay Hagan (D-NC), will help expedite the development of modern, targeted, and personalized therapies for patients suffering from serious and life-threatening diseases while preserving the FDA’s robust standards for safety and effectiveness. Senator Hagan is to be congratulated for her hard work and leadership on this very important provision.

However, if prior users are keeping their technology secret while being protected, that leap-frogging from one breakthrough to the next be impeded. Disclosure is the backbone of the progression of the sciences for this reason. “[T]he ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure.” Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, 151 (1989). Sharing ideas allows others to improve upon the state of the art and as a result, better products such as medicine and consumer electronics are brought to market thereby driving our economy and benefiting the welfare of the U.S. as a whole. Prior user rights, on the other hand, will inhibit this progression.

We must find reasonable ways to stop infringement of intellectual property on the Internet. Such a solution must be fair to the victim of the infringement. It must uphold the principles of the Constitution of the United States. And it must not break the Internet. SOPA and PIPA may not be perfect implementations of such protection, but they meet all of these requirements. There may be better strategies that can be reached through measured and thoughtful debate, but not through excessive hyperbole and misrepresentation.

To all those who can read the Constitution it has to be clear that the Supreme Court’s decision in Golan v. Holder is absurd. It is a ridiculous decision that lacks intellectual honesty and defies common sense. Further, the facts of this case provide ample ground for the suspicions of many who wonder why it is that the United States is so interested in losing its identity and compromising Constitutional principles in order to facilitate some ill conceived plan to join the world community. Simply stated, treaties and international law cannot trump the Constitution. With all due respect to the six Justices who ruled in favor of stripping works from the public domain, the Constitution does not support this decision and any attempts to argue to the contrary are insulting and show a contemptuous understanding of the history and role of intellectual property in America.

The Obama government restructuring plan is of particular importance within the patent community because it will affect the Commerce Department as well as five smaller agencies. As soon as I heard that my Spidey-senses started tingling. Wasn’t there something in the America Invents Act that applied only so long as the United States Patent and Trademark Office remained an agency within the Department of Commerce? Sure enough, there is. The new fee setting authority vested in the USPTO is contingent upon the Patent and Trademark Office remaining within the Department of Commerce.

There has to be some patent attorneys living in the portions of Montgomery and Prince George Counties represented by Congressman Van Hollen. There has to be some patent law firms in Dallas with ties to Congressman Hensarling and/or the 5th District of Texas. I know for sure there are patent attorneys in Ohio, Arizona, Massachusetts and Washington. These are the folks who are tasked with the burden of finding $1.2 trillion to submit to Congress for a vote, and stakeholders in the patent system should reach out to them and express their views on funding for the Patent Office. Businesses, firms and individuals within the relevant Districts and States will likely have the most influence, but anyone and everyone should stand up and be heard. Who knows when, or if, there will ever be an opportunity as good as this to end fee diversion.

As the Super Committee struggles to find nearly $1.2 trillion in revenue or savings, they should take a serious look at the proposal to give the US Patent and Trademark Office greater control over its budget and fees by creating a revolving fund. At the request of many in the patent community, Senator Jon Kyl – a member of the Super Committee – is proposing that the Super Committee include the revolving fund The Congressional Budget Office (CBO) has informally indicated that it will score the Kyl provision as saving $700 million over 10 years. By taking the USPTO out of the regular appropriations process, the creation of a revolving fund will take approximately $700 million off budget and help the Super Committee reach their goal. And –besides being a budget saver – the revolving fund is good policy.

The United States Patent and Trademark Office (USPTO) released two Federal Register Notices on October 7, 2011, seeking written comments and announcing two public hearings for two studies the agency is required to conduct under the America Invents Act. Specifically, Congress is requiring the USPTO to study and report on the availability of prior user rights in foreign countries as well as options to aid small businesses and independent inventors in securing patent protection for their inventions. The USPTO reports for both studies are due in mid-January 2012.

I have done quite a bit of writing about the America Invents Act, but I have been a bit derelict in providing the sequel to America Invents: A Simple Guide to Patent Reform, Part 1. Part of the reason, if not the entirety of the reason, is that the major parts of the American Invents Act that remain are anything but simple. On this note I embark upon Part 2, which will seek to make sense of prior user rights, post-grant review, preissuance submission and patentability changes. This will leave inter partes review, supplemental examination and derivation proceedings for the finale — Part 3.

It is fair to say that enactment of the AIA is not what most stakeholders championed early on. Many small inventors and innovation companies feel that some of the provisions are not in their best interest. IT would have preferred a bill that did more to change how patents are valued and enforced. Nevertheless, to most stakeholder, the final version of the bill is an improvement over previous versions of patent legislation. When patent reform legislation was first introduced in 2005, its primary objective was to reduce the infringement liability of large technology aggregators by significantly limiting equitable and monetary remedies, restrict venue, and make issued patents far easier to invalidate through post-grant review. In addition, earlier versions of the bill would have given the USPTO unprecedented substantive rulemaking authority and increased the cost and burden of filing a patent application. In combination, these measures would have significantly undermined the enforceability and value of patent rights, while increasing the cost, complexity, and uncertainty of obtaining patents. All of these reforms were advanced by a IT interests set on weakening the ability of small innovators to obtain and enforce patents.

It isn’t exactly a newflash to announce that Washington, D.C. is dsyfunctional, anyone paying attention over the past few years has long since come to that conclusion. Thus, it is hardly breaking news to report that Congress is on the verge of passing a Continuing Resolution rather than actually doing their job and passing a budget for fiscal year 2012. Why do today what is required of you to fulfill the responsibilities of your job when you can just kick the can down the road? Of course, by so doing Congress will embark upon a path that will divert some $600 million from the USPTO during FY 2012.

So the point is that there is the language of the bill, and then there is what we were told was in the bill, which actually isn’t what is in the bill if you are reading the plain meaning. In the coming days President Obama will sign the bill and then the Courts will embark on the long journey to decipher the text and tell us what it means. All the while the USPTO will be proposing and then enacting new rules. Patent law, practice and procedure is in a state of flux to say the least.

The president says that’s the fault of recalcitrant Republicans in Congress. Republicans in Congress say it’s the fault of a president who is hostile to business. But the real reason we are not putting people back to work three long years into the recession is that Washington is afflicted with a totally-bipartisan cluelessness about how to create jobs.