This week in Washington IP news, both houses of Congress remain quiet during regularly scheduled work periods, but IPWatchdog debuts its new headquarters in Ashburn, VA with Life Science Masters 2022 on Monday and Tuesday. In Seoul, South Korea, the Information Technology & Innovation Foundation’s Global Trade and Innovation Policy Alliance hosts a two-day summit to focus on strengthening strategic ties in innovation economies among member countries. ITIF also hosts an event this week to explore the upcoming COP 27 climate change conference and how stronger innovation policies can lead foreign governments to meeting climate commitments established at this meeting. Elsewhere, the Center for Strategic & International Studies hosts a pair of events taking a look at cybersecurity efforts within the U.S. Department of Homeland Security, while the U.S. Patent and Trademark Office hosts a regular quarterly update of recent legislative and case law developments on intellectual property in China.
The U.S. Senate might be the world’s “greatest deliberative body.” But it’s certainly not the quickest. For over a year, senators have failed to review and approve an uncontroversial nominee for a position that most Americans have never heard of—but one that’s immensely important to our economy. In 2015, Congress passed the late Senator Orrin Hatch’s Trade Facilitation and Trade Enforcement Act, which created the position of Chief Innovation and Intellectual Property Negotiator. Senator Hatch believed that intellectual property (IP) was so important to the U.S. economy that it deserved the focus of an ambassador-rank official charged with guaranteeing strong IP standards are upheld and enforced with global trading partners. He was right: IP-intensive industries support more than 62 million American jobs, nearly half of all U.S. employment.
Last week, the leadership of the Judiciary Committees and IP Subcommittees from both houses of Congress received letters seeking to address misinformation being presented by critics of the Patent Eligibility Restoration Act, a bill proposed by Senator Thom Tillis (R-NC) that would abrogate several U.S. Supreme Court rulings on patent eligibility under 35 U.S.C. § 101. Both the Council for Innovation Promotion (C4IP) and University of Akron Law Professor Emily Michiko Morris not only supported Congressional passage of Tillis’ patent eligibility bill but also pushed back on criticisms that the bill would enable biotech firms to patent genes as they exist in the human body.
This week in Washington IP news, the United States Patent and Trademark Office (USPTO) is hosting events on blockchain and drafting provisional patent applications, while the Brookings Institution is hosting an event on the regulation of cryptocurrency markets. Also in the cyber world, three authors will make their case for a more holistic and aggressive U.S. approach to cyberspace strategy at The Heritage Foundation.
The International Center for Law and Economics (ICLE) released a white paper on Thursday arguing that Section 512 of Title 17 of the Copyright Act has been a failure, and it should be reevaluated and overhauled. Congress passed Section 512 as part of the Digital Millennium Copyright Act (DMCA), and authors Kristian Stout and Geoffrey Manne argue the federal courts have written out key provisions in the law. Stout and Manne write that Section 512 has succeeded in allowing online service providers (OSPs) such as social media companies to grow and thrive by providing a safe harbor provision as long as they take down infringement promptly. However, the authors argue that the law has failed to provide proper incentives and systems to prevent digital piracy
The Pride in Patent Ownership Act, S.2774, is currently being attached to the National Defense Authorization Act (NDAA). The NDAA is “must pass” legislation funding the military at a time when wars are brewing around the world, some with credible threats of nuclear war. Attaching the Pride in Patent Ownership Act to the NDAA means it will certainly become law.
The Pride in Patent Ownership Act requires those who acquire patents to publicly register their ownership assignments with the U.S. Patent and Trademark Office (USPTO) within 120 days. Thus, it serves to identify potential patent infringement plaintiffs. If the patent holder misses the 120-day deadline, an extremely harsh penalty of losing treble damages for willful infringement, the sole remaining deterrent to willful infringement, is applied.
Patent eligibility law in the United States is in a state of disarray that has led to inconsistent case decisions, deep uncertainty in the innovative, investment and legal communities, and unpredictable outcomes in patent prosecution and litigation. These facts have been extensively documented in multiple sources, including: the statements of all 12 active judges of the nation’s only patent court, the U.S. Court of Appeals for the Federal Circuit (confirmed prior to October 2021); the findings and reports of the Executive branch across all recent Administrations; the bi-partisan conclusions of Congressional committees; a robust body of academic studies; and at least forty separate witness statements at the 2019 hearings on this issue before the Senate Committee on the Judiciary Subcommittee on IP, including statements from advocates that oppose Section 101 reforms.
The United States Patent and Trademark Office (USPTO) announced today that it is seeking comment from the public on “proposed initiatives directed at bolstering the robustness and reliability of patents to incentivize and protect new and nonobvious inventions while facilitating the broader dissemination of public knowledge to promote innovation and competition.” During IPWatchdog’s LIVE event in Dallas, Texas, in September, USPTO Texas Regional Office Director Hope Shimabuku explained that issuing “robust and reliable patents”—which seems to have replaced the oft-maligned term, “patent quality,”—is a key focus for USPTO Director Kathi Vidal. The request for comment (RFC) tackles this problem from a number of angles, from fee-setting to terminal disclaimer and continuation practices, to improving prior art searches. The RFC stems in part from a July letter sent by the USPTO to the Food and Drug Administration (FDA) outlining the USPTO’s planned initiatives to help combat perceived links between patents and drug pricing problems.
This week in Washington IP news, both houses of Congress are silent as they enter scheduled work periods but the Hudson Institute and the American Enterprise Institute host conversations with Chris Miller, the author of Chip Wars: The Fight for the World’s Most Critical Technology. Another Hudson Institute event with Federal Trade Commission Commissioner Noah Phillips explores what the proper role is for the United States’ top antitrust enforcement agency in regulating the tech sector, while the U.S. Patent and Trademark Office hosts a presentation exploring alternative dispute resolution proceedings available at the WIPO Center for resolving disputes over standard essential patents.
On Wednesday night, during a launch event for the Council for Innovation Promotion (C4IP), Senator Chris Coons (D-DE) announced that he has come on as a co-sponsor of the Patent Eligibility Restoration Act of 2022. Senator Thom Tillis (R-NC) introduced the first draft of his bill in August, but had no co-sponsors at the time, which caused some to question the chances of the bill passing anytime soon. But tonight, Coons said he is happy to be a co-sponsor and both Coons and Tillis seemed optimistic about the prospects for intellectual property legislation in the next congress—no matter which of them ends up as Chair.
On September 23, the office of the U.S. Solicitor General filed a brief with the U.S. Supreme Court on the issues at play in Abitron Austria GmbH v. Hetronic International, Inc., a trademark case in which the U.S. Court of Appeals for the Tenth Circuit affirmed a $90 million damages award for trademark infringement based on infringement occurring almost entirely outside of the United States. The Solicitor General’s brief asks the nation’s highest court to grant cert on Abitron Austria’s appeal in order to properly limit the application of the Lanham Act so that damages are only awarded when the alleged infringement has a likelihood of causing confusion among U.S. consumers.
This week in Washington IP news, the Senate Aviation Safety Subcommittee takes a look at incorporating unmanned aerial systems more fully into the U.S. national airspace, while the full Senate Commerce Committee explores how to maintain U.S. leadership in emerging compute technologies. Over in the House of Representatives, the House Science Committee focuses on the risks that must be managed as artificial intelligence (AI) systems become more highly developed. Elsewhere, the U.S. Patent and Trademark Office hosts the latest public meeting of the Patent Public Advisory Committee, and the American Enterprise Institute hosts a half-day event on Tuesday featuring multiple expert panels discussing topics at the intersection of technology and government.
In June of this year, United States Patent and Trademark Office (USPTO) Director Kathi Vidal replied to a late April request by Senators Thom Tillis (R-NC) and Mazie Hirono (D-HI) for answers to a number of questions surrounding abuse of the inter partes review (IPR) system, explaining that she was working on the problem. Now, Vidal has sent a follow-up letter providing more detail on two of the questions raised in the letter, specifically with respect to the USTPO’s authority to issue sanctions for bad faith petitions. In addition to providing statistics on the Patent Trial and Appeal Board’s use of sanctions since the America Invents Act (AIA) was passed, Vidal also said she plans to seek stakeholder input to explore further options for addressing misconduct.
This morning, the full U.S. Senate Committee on the Judiciary convened an executive business meeting during which the committee advanced S. 673, the Journalism Competition and Preservation Act (JCPA). Though the bill was reported favorably with an amendment drawing support from the Republican members of the committee, others on the Senate Judiciary raised concerns that could presage further debate after it hits the floor of the Senate. The JCPA was first introduced into both houses of Congress last March, with Senators Amy Klobuchar (D-MN) and John Kennedy (R-LA) sponsoring the Senate version and Representatives David Cicilline (D-RI) and Ken Buck (R-NY) sponsoring the version introduced into the House of Representatives.
This week in Washington IP news, the Senate Judiciary Committee holds a vote on the Journalism Competition and Preservation Act, which has faced some stiff opposition in recent weeks, while the Senate Select Committee on Intelligence takes a look at operations at the National Counterintelligence and Security Center designed to protect American innovation from being stolen by malicious actors. Over in the House of Representatives, the Subcommittee on Legislative and Budget Process explores potential avenues for protecting the right to repair in the digital age. Elsewhere, the U.S. Patent and Trademark Office (USPTO) hosts its second AI/ET Partnership Series meeting at its Silicon Valley regional office, and the Information Technology & Innovation Foundation focuses on the EU’s Digital Markets Act and its possible negative impacts on innovation.