Posts Tagged: "Congress"

The Hearing Order concluded that the parties raised sufficient issues of material fact to warrant the ready-to-go Hearing to determine when respondent’s alleged misconduct was actually “made known” to an officer or employee of the USPTO pursuant to §32. Thus, the Hearing would be able to afford the fact-finder the opportunity to assess the credibility of the witnesses and draw inferences from the facts. Further, as the parties were already prepared for the Hearing on the merits of the case, the Judge believed that he would entertain testimony on both the SOL issue and the disciplinary sanction sought by the OED Director. Thus, the Hearing Order determined that the Judge found issues of material fact existed as to when the misconduct forming the basis for the disciplinary proceeding was “made known” to an officer or employee of the Office.

Corrosive changes in patent law are undermining research university commercialization of patented, federally-funded basic research, endangering our nation’s innovation ecosystem. Mounting uncertainty repels private investment needed to convert new discoveries into innovative public benefits. Prominent investment destabilizers include: post development invalidation, big-tech’s efficient infringement, increased costs of patent enforcement, looming congressional patent reform, and foreign IP theft and price/access manipulation. Collectively these uncertainties can crumble our country’s world-class innovation ecosystem. We must use the limited time left to reverse that catastrophic outcome by seizing every opportunity to do so.

There is now federal jurisdiction for trade secret theft. The DTSA creates a federal cause of action for trade secret misappropriation that largely mirrors the current state of the law under the Uniform Trade Secrets Act, which has been adopted by 48 states. The DTSA uses a similar definition of trade secrets, and a three-year statute of limitations, and it authorizes remedies similar to those found in current state laws. The DTSA will not preempt existing state law, which will preserve and afford plaintiffs’ options in regards to whether to file federal or state claims and which court to select.

Congress can, and should, take at least four steps in restoring the health and vitality of our patent system: First, Congress should ensure that the patent grant is meaningful and valuable in the first instance. Second, Congress should reaffirm the exclusive nature of the patent grant. Third, Congress should clarify, and perhaps legislatively overrule, the cases addressing patent eligible subject matter, Alice, Mayo, and Myriad. Fourth, and finally, Congress should tread extremely carefully in the realm of so-called patent litigation reform.

In the world of messaging services, the cross-platform mobile messaging app WhatsApp enjoys the enviable position of being the world’s most popular messaging service, eclipsing one billion monthly active users as of this February. Owned by Facebook Inc. (NASDAQ:FB), WhatsApp’s user base even outpaces that of Facebook’s flagship messaging service Messenger. Over on Capitol Hill, WhatsApp’s encrypted messaging services has been drawing strong language from those perceiving the technology as a possible security threat.

Earlier today the United States House of Representatives passed S. 1890, the Defend Trade Secrets Act of 2016 (DTSA), by a vote of 410-2. Only Congressman Thomas Massie (R-KY) and Congressman Justin Amash (R-MI) voted against the bill. Even before the Senate passed the DTSA the Obama Administration voiced strong support for the bill, therefore, it is expected that President Obama will quickly sign the bill into law over the next several days.

As the Library of Congress ushers in a new era with a new Librarian, the time is ripe to ensure that the Copyright Office has the accountability and authority to best serve all of its stakeholders—most of all the American public. The nomination of Dr. Hayden as the next Librarian of Congress provides us with the opportunity to clarify the importance of the roles both the Library of Congress and the U.S. Copyright Office play in creating, cataloging, and administering the systems that preserve and promote our nation’s culture, by ensuring that the two talented leaders have a close partnership and a direct working relationship, with appropriately defined authority and responsibility for their respective areas of expertise.

Where an ex parte order is unavailable under the DTSA, complainants may still seek injunctive relief. However, unlike the UTSA, which also offers injunctive relief, the DTSA includes language providing that an injunction is improper and not issuable if it: (1) prevents a person from entering into an employment relationship, or if conditions placed on employment are not supported by evidence of threatened misappropriation, or (2) otherwise conflicts with an applicable state law prohibiting restraints on the practice of a lawful profession, trade, or business.

Trade secrets are the only major type of intellectual property (IP) that is not backed by U.S. federal civil remedies to compensate owners for theft. Notably, American businesses face hundreds of billions of dollars in losses per year due to trade secret misappropriation, and the problem is worsening, as cybertheft (particularly from China) continues to grow in scale… Appropriately crafted civil trade secret legislation is no panacea, but it holds the promise of providing tangible benefits, not just to private trade secret holders, but to the overall economy. In addition to vindicating property rights and protecting individual businesses, such legislation should enhance the effectiveness of the competitive process and thereby raise economic welfare.

In today’s political climate, any bipartisan legislative action is, well, unusual. Unanimous votes are like unicorns. But one happened yesterday, as the Senate voted 87-0 to approve the Defend Trade Secrets Act, S.1890. The DTSA does not preempt state laws, but provides trade secret owners with another, optional forum when the subject matter of the trade secret relates to interstate commerce. This means that local disputes will for the most part continue to be litigated in state courts, but for cases that can use the special advantages provided by nationwide service of process and a single set of rules across multiple jurisdictions, plaintiffs are likely to use the federal option.

Earlier today the White House released a Statement of Administration Policy, which strongly supports passage of s. 1890, the Defend Trade Secrets Act of 2016 (DTSA). The policy statement explained: ”The Administration strongly supports Senate passage of S. 1890, the Defend Trade Secrets Act of 2016… S. 1890 would establish a Federal civil private cause of action for trade secret theft that would provide businesses with a more uniform, reliable, and predictable way to protect their valuable trade secrets anywhere in the country.”

This extra attention on Wisconsin, coupled with Paul Ryan being the dream candidate for those who favor an open Republican Convention, provides us with a somewhat manufactured, yet novel and non-obvious opportunity to examine Ryan’s views on patents. Oddly, much like those of candidate Kasich, Ryan’s views have been in favor of fee diversion, which have been identified by former heads of the U.S. Patent & Trademark Office as the single biggest problem that has or will face the Office. Indeed, the mentality that leads Donald Trump to exalt the virtues of eminent domain for the greater good isn’t all that different from the thinking that must be required when Paul Ryan (and Kasich too) decide it is appropriate to siphon off user fees from the USPTO.

Despite being grossly unfair to small inventors, the courts are routinely transferring cases to a venue containing the headquarters of the infringing multinational corporation, as happened in this case. Often cases are moved thousands of miles requiring outside counsel, travel, additional motions and legal work and other costs. Often the new venue is not experienced in patent cases and may take years longer to conclude the litigation. Part of the strategy for defendants is to fight a costly war of attrition against independent inventors and small businesses. Eventually they will be forced to give up. That is why patent reform that impacts venue matters so much, it is about raising costs, tipping the scales of justice and beating innovators into submission using procedural rules.

While widespread patent reform seems unlikely during the remainder of the 114th Congress, targeted patent reform is another matter entirely. Indeed, the Senate Committee on Small Business & Entrepreneurship recently held a hearing largely attacking the America Invents Act (AIA) and the current reform bills and in a bi-partisan manner. And this week we may see a bi-partisan push in the Senate for a bill that focuses only on venue reform, which will be co-sponsored by Senator Jeff Flake (R-AZ) and Senator Cory Gardner (R-CO). The bill, available in draft form, is titled the Venue Equity and Non-Uniformity Elimination Act of 2016.

Small businesses and independent inventors are critical to revolutionary advancement of American technology. They file over 20% of the applications at the USPTO, and their patents are more likely to encompass breakthrough inventions, rather than incremental change. While Congress has considered a range of legislative reforms, the other branches of government have also been moving forward with challenges confronting the patent system. It is important for America that we get this right. Thoughtful legislation can further improve the patent system and lead to more job creation and economic growth as long as we remember that it is the patent system fuels America’s innovative spirit.