Posts Tagged: "Congress"

On the menu this week for Other Barks & Bites, the Supreme Court hears oral arguments in a case challenging the Lanham Act’s disparagement provision, a six-figure damages verdict goes in favor of former USPTO Deputy Director Russell Slifer, a TTAB petition is filed to challenge the trademark application for an NFL franchise currently in the relocation process, an announcement by a Japanese academic-industry research project that claims to have doubled the effectiveness of solar cell panel conversion rates, the FTC takes action against a pharmaceutical company and much more.

The Senate Judiciary Committee is where any action relating to intellectual property reform will be played out during the 115th Congress, at least on the Senate side of the Capitol. Unlike in previous years, we enter 2017 without much support for a fresh round of patent reform, but at least some patent reform measures are sure to be introduced during the 115th Congress… Look for efforts to grant the Copyright Office greater autonomy and independence during the 115th Congress, even a push to remove the Copyright Office out form under the Library of Congress… Without further ado, meet the Republicans on the Senate Judiciary Committee.

The genesis of the patent venue “problem” is simple: Many patent infringement defendants complain about traveling to the Eastern District of Texas. They feel that it is too pro-patent, too pro-enforcement, or too difficult for defendants to win on a motion to dismiss… With the US Supreme Court agreeing to hear TC Heartland the perennial patent venue issue is front and center for patent reform in 2017. This case will attract much amicus, media, Congressional, law school, and fake news attention. It should influence how patent owners and litigation investors look at venue options in general and perhaps also with regard to growth markets like Germany and China. It will also tell us how the Trump administration thinks about patent issues.

For a many years, the pied pipers of the anti-patent lobby whistled the patent troll melody and Congress, desperately in need of a glorious bipartisan victory, pushed and ultimately passed inventor killing legislation… For whatever reason, 2016 represented the year that Congress itself, or at least enough Members of Congress, got serious about considering the negative effects of pandering to the anti-patent lobby. Those effects are now clear and the stage is set to turn it back. Of course, we can anticipate there will be new pushes for patent reform in 2017 and beyond. Perhaps some of those attempts at patent reform will be from the pro-patent side, but we need to remain vigilant because the anti-patent lobby has not and will not go away.

Almost 100% of the pre-election patent reform lobbying efforts were focused on the campaign, which did not prevail and thus on the morning of November 9 the patent community woke up to being well behind in getting a rapport established with the incoming administration. Don’t be fooled by the seductive image of a drained swamp, those of us in the pro-patent community will need to be pro-active in our engagement with Washington if we want patent reforms that meet our expectations.

Part of the problem with the debate over “software patents” has been the near complete failure to accurately describe what these patents protect. Opponents of software patents frequently describe these patents as protecting nothing more than “mathematics” or logic. This is plainly false. Software is a valuable, real-world, technological innovation that is used in everything from vacuums to cars to computers to phones.

The NASA Transition Authorization Act would require NASA to develop propulsion technologies intended to reduce travel time to Mars, as well as develop a strategic framework for human space flight to Mars, and would also require NASA to develop a transition plan that would enable greater participation in the International Space Station (ISS).

Earlier today, by a vote of 94 to 5, the United States Senate overwhelmingly passed the 21st Century Cures Act. Having passed in the House, the Cures Act now goes off to the White House for the President’s signature, where it will receive a warm reception. “I’ll sign it as soon as it reaches my desk, because like a lot of you I’ve lost people I’ve loved deeply to cancer,” President Obama said in his weekly address on December 3, 2016, as he called upon Congress to act swiftly to pass the legislation and send it to the White House.

Bayh-Dole is running on autopilot without Executive branch oversight and U.S. patents are no longer the world’s gold standard. Without a course correction, we could be headed back to the bad old days… Bayh-Dole has become a driver of the U.S. economy. Every day of the year universities form two new companies and two new products from their inventions are commercialized. University spin out companies tend to stay in state becoming significant contributors to the regional economy… Bayh-Dole is a recognized best practice. The Chinese have adopted it while strengthening their patent system to better compete with us.

The 21st Century Cures Act has broad bipartisan support having been passed in the U.S. House by an overwhelming 344-77 roll call vote. It also has the backing of the White House; a statement release from the White House’s Office of the Press Secretary on November 30th calls the 21st Century Cures Act “critically important legislation” which increases funding to combat the American heroin epidemic, supports the “Cancer Moonshot” led by Vice President Joe Biden and takes meaningful steps towards improving mental health and Alzheimer’s disease outcomes.

The Review the Rule Act of 2016 was introduced into the U.S. Senate by Sen. Chris Coons (D-DE), which would delay amendments to Federal Rule of Criminal Procedure 41 set to go into effect on December 1st… The proposed changes to Federal Rule of Criminal Procedure 41, which governs the process for legal searches and seizures of criminal evidence, contraband and criminal suspects, were proposed to both houses of Congress this April by the U.S. Supreme Court in a letter to both houses of Congress from Chief Justice John Roberts. The changes to Rule 41 would give a magistrate judge in a district where activities related to a crime may have occurred the authority to issue a warrant to remotely access electronic storage media to copy electronic records even if the electronic storage media may be outside of the judge’s district.

The Federal Circuit reversed the cancellation of two trademarks by the Trademark Trial and Appeal Board (“Board”) and remanded for further consideration… “Use in commerce” under the Lanham Act encompasses any activity that falls under Congress’s Commerce Clause power, including in-state sales to an out-of-state resident. Activities that are within such regulatory authority are unlikely to be disqualified as merely “de minimis,” e.g. in economic impact.

The DMCA mandated that the Copyright Office establish a registry of designated agents for service of take-down notices. The initial system now appears to have been primitive. … Beginning December 1, 2016, service providers will be able to submit and update the names and contact information for their designated agents for receipt of take-down notices using a new electronic system. What is more, the fee charged for a paper filing, $105, will be reduced to just $6 for an electronic filing, reflecting the reduced claim on Copyright Office resources to input data and maintain a reliable resource.

As more reports come out that patent filings for individuals and small businesses are down and a general recognition that real innovation does not come from large organizations, but rather small ones, it is becoming clearer that changes in our laws have decreased the previous standards that were in place to “promote the progress of science and useful arts.” As such, it seems to this author that our current patent laws are unconstitutional, or at the very least are thoroughly and completely frustrating the constitutional purpose for which they were created since our laws are promoting less and not “securing” our discoveries. We need to strengthen our patent laws to have a system that promotes the progress of science and useful arts by efficiently and affordably securing for inventors the exclusive rights to their discoveries and innovations.

But now, after quickly dispatching with the patent troll meme as much ado about nothing, we can, should and must now unleash a more simplified counter attack by referencing a commonly deployed patent abuse known as “efficient infringement.” This deliberate disdain for patent property is the business model driving mega-tech IT incumbents to continually pressure Congress to enact measure such as HR 9 and S.1137. Efficient infringement is a cold-hearted business calculation whereby businesses decide it will be cheaper to steal patented technology than to license it and pay a fair royalty to the innovator. This cold-hearted business approach to stealing intellectual property resonates when it is conveyed properly. Here is a simple script for research universities to use when they communicate with candidates’ pre-election and Staffers and those who prevail after the election. These arguments are easily adaptable to all pro-patent advocates.