Posts Tagged: "innovation"

The original motivation for the Bayh-Dole Act was to encourage the commercialization of academic innovation so that new technologies could be available for the benefit of all. Yet today, I feel compelled to call attention to a compliance landscape that is significantly different than that of the past four decades—one that could have dire consequences for institutions if they choose to be complacent. Not only do sponsoring agencies have an interest in how tech transfer complies with Bayh-Dole regulations, other entities have entered the competitive landscape looking for opportunities to turn lack of compliance to their advantage. In just the past two years we’ve seen a spike in requests for the government to exercise march-in rights by a variety of non-governmental advocacy groups (NGOs). These NGOs are staffed by PhDs who are well-versed in the academic tech transfer ecosystem and they actively seek out pockets of non-compliance. An attempt is then made to extricate key technologies using non-compliance as a lever and the NGOs become the primary influence on how innovation is put into the marketplace. I would ask the question, “Who will pick up on these inventions?” If you follow this chain of events we may find ourselves in a situation where innovation is not freely available to all (the original intent of Bayh-Dole) but an endpoint where NGOs and their backers control how technologies get into the marketplace.

USPTO Director Andrei Iancu participated in a fireside chat, titled “The Crossroads of Technology and Innovation,” hosted by the Consumer Technology Association (CTA) at its sixth annual Innovation Policy Day on Tuesday, March 12 at SXSW in Austin, Texas. Sitting with Director Iancu was host Michael Hayes, Sr. Manager of Government Affairs for the CTA. The chat was quite short and briefly touched on topics such as celebrating the 10 millionth-issued patent, the preparedness of the patent system for the future, artificial intelligence and patent eligibility, and the availability of patenting for all peoples. Then, in what some may consider to be an unscrupulous move, Hayes introduced the narrative of patent trolls.

With congress out of session this week, it is a good time to meet the members of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, which—unlike the Senate IP Subcommittee—has not yet convened this term. While the House may be largely preoccupied with issues outside the IP realm thus far, other House committees and subcommittees have been actively debating a number of topics relevant to IP. The 116th Congress brings both new and old faces to the Subcommittee with varying levels of IP knowledge and activity. Many of its members, such as Hakeem Jeffries and Zoe Lofgren, are well-versed in IP issues, starting with the full Judiciary Committee Chairman, Jerrold Nadler.

On the afternoon of Wednesday, March 13, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held an oversight hearing of the U.S. Patent and Trademark Office featuring testimony from and questioning of USPTO Director Andrei Iancu. While this hearing was relatively short by Congressional standards, the Senate IP Subcommittee explored recent changes instituted during Iancu’s tenure as USPTO Director and also got into the debate on pharmaceutical patents—a topic that has been front and center for both houses of Congress in recent weeks.

Representative Steve Stivers (R-OH) and Representative Bill Foster (D-IL) introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act, which would in part restore injunctive relief as a remedy for patent infringement, in the U.S. House of Representatives in March of last year. While there has been much talk about closed-door discussions taking place on Capitol Hill recently around fixing Section 101 law, the House has not yet re-introduced the STRONGER Patents Act, and has thus far been focused on other issues this term. But Rep. Stivers seems confident that the Act has a chance this term, and says that this could be the consensus legislation the House needs. Read below for more on Rep. Stivers’ thoughts about patent reform in the 116th Congress, where the America Invents Act went wrong, and how we ensure the U.S. patent system is restored to number one.

A number of organizations, including Ericsson, Nokia, Philips, Qualcomm, the Innovation Alliance and the Licensing Executives Society, have sent two separate letters to U.S. Attorney General William Barr, USPTO Director Andrei Iancu, and Secretary of Commerce Wilbur Ross stating their support for the United States’ decision to withdraw the Department of Justice, Antitrust Division’s assent to the 2013 joint DOJ-U.S. Patent and Trademark Office “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” (the 2013 Joint Policy Statement). The letter sent by Ericsson, Nokia, Philips, and Qualcomm begins by explaining that those signing the letters collectively spend many billions of dollars annually to “the development of cutting-edge that substantially contribute to the social welfare and quality of life of U.S. consumers,” and “and employ tens of thousands of people in the U.S.” The letter goes on to explain that injunctions are necessary to address the widespread patent infringement that has occurred in recent years; infringement that risks innovators’ ability to continue to innovate and create next generation technologies. Without property protections it is economically irrational to invest the billions of dollars required to create cutting-edge technologies.

This week in Washington, D.C., Capitol Hill is silent due to district work periods for the House of Representatives and state work periods for the Senate. However, the nation’s capital is still very busy with a collection of think tank events related to innovation and technology. A pair of events at New America looks at how technology and social media can stem the tide of extremist ideologies or how advances in DNA testing can help solve cold cases. Cybersecurity challenges at the next Summer Olympic Games are the topic of discussion at the Wilson Center. The Heritage Foundation also hosts a pair of events looking at how the Constitutional Framers viewed property and issues with China-based Huawei’s dominance in 5G. Closing out the week is a Friday event at the Information Technology & Innovation Foundation exploring challenges to the U.S. Postal Service in the e-commerce era.

While a preliminary trade deal seems to have been struck between China and the United States over tariffs, the two sides have yet to seriously address the toughest and perhaps most economically crucial issues on the table: China clinging to a tech policy based on systematic theft of U.S. intellectual property (IP), forced technology transfer, and cybertheft.President Trump has paid lip service to the need for any deal to include IP protections, and China responded on March 14 by rushing a law that would, according to CNBC, “prohibit the forced transfer of technology from foreign-invested businesses in China, step up protection of intellectual property and claim to give the companies equal footing with domestic players.”  Nevertheless, China watchers are skeptical that these commitments remain cosmetic, while it remains clear that Trump has focused his negotiators chiefly on those things nearest and dearest to his heart: physical goods and tariffs. As talks move forward, the question remains—how will U.S. Trade Representative (USTR) Robert Lighthizer resolve these challenges for the benefit of IP holders?

This week in Other Barks & Bites: the U.S. Patent and Trademark Office promotes Scott Boalick to Chief Judge of the Patent Trial and Appeal Board (PTAB); the agency also announces a new pilot program for motions to amend at the PTAB; India’s Cabinet votes to bring trademark and industrial design law into accord with international standards; a trial date is set in the copyright case brought by the heirs of Marvin Gaye against Ed Sheeran; a Southern California district judge rules that a Dr. Seuss/Star Trek mash-up is a transformative fair use; Apple alleges that someone has tampered with a key witness in the Qualcomm patent infringement case; and UK finance ministers issue a report calling for more antitrust activity against American tech giants, including Facebook and Google.

In an expected move, Huawei filed a lawsuit against the United States in the U.S. District Court for the District of Texas on March 6. Huawei Technologies v. U.S., 4:19-cv-00159, U.S. District Court, Eastern District of Texas (Sherman). In its mammoth 54-page complaint, the company alleges the United States and its agencies violated the Federal Constitution when it singled out Huawei in the 2019 National Defense Authorization Act (NDAA). U.S. authorities are concerned that China could use Huawei’s equipment to spy on communications networks. Having offices in Plano, Huawei had jurisdiction to file in the Eastern District of Texas, widely recognized as a plaintiff-friendly court for technology matters. But despite its considerable resources and legal muscle, Huawei will have a challenging time proving its case in court.

Today, March 13, the Senate Subcommittee on Intellectual Property met to discuss “Oversight of the United States Patent and Trademark Office,” with USPTO Director Andrei Iancu as the sole witness. IPWatchdog will report the details of that hearing in full, but in the meantime it is worth reviewing what the Subcommittee covered in its first hearing, held February 26, which included the report of the Intellectual Property Enforcement Coordinator (IPEC) on the findings of the IPEC’s Annual Intellectual Property Report. While the hearing was nominally about the IPEC report, comments made and questions raised by Subcommittee members throughout the course of the hearing made it clear that the Subcommittee intends to play an important role in the debate around IP and patent law during the 116th Congress.

Just as the drug pricing debate on Capitol Hill is heating up, an important new study, “The Bayh-Dole Act’s Vital Importance to the U.S. Life-Sciences Innovation System,” published by the Information Technology & Innovation Foundation (ITIF), underscores the law’s contribution to the United States’ lead in the life sciences. The report warns that attempts to misuse the march-in rights provision of the law to control drug prices would have serious consequences to our competitiveness and our health. Predictably, the critics condemned the report as “A lot of myth and propaganda.” Despite being repeatedly rebuffed, they continue to argue the law authorizes the government to license competitors if a resulting product isn’t “reasonably priced.” That debate spilled over to the Capitol Hill unveiling of the study, in which I participated. What happened there sheds a lot of light on the nature of the argument.

The Electronic Frontier Foundation (EFF) is at it again, this time with what they refer to as a Save Alice campaign. The EFF does not like the Revised Patent Eligibility Guidance published by the United States Patent and Trademark Office (USPTO) in January 2019 and is charging USPTO Director Andrei Iancu with attempting to subvert the United States Supreme Court and essentially ignore Alice v. CLS Bank. These assertions are bogus, and truthfully, they are hardly worth the consideration of thoughtful individuals interested in a meaningful dialogue about the state of the U.S. patent system. Director Iancu has issued guidance that strictly follows exactly what the Supreme Court ruled in Alice, period. Over the years patent examiners, Administrative Patent Judges, district courts, and the Federal Circuit have dramatically expanded Alice. It was admitted in Alice that the “invention” could be coded over a weekend by a second-year college student, which means it was extremely trivial and not innovative.

This week on Capitol Hill, both houses of Congress are abuzz with a full schedule of hearings related to science, technology and innovation topics. In the House of Representatives, various committees explore a proposed net neutrality bill, innovation in the aviation industry, and ways to improve competition in the pharmaceutical industry—a hot topic of debate in recent weeks. Both the House and the Senate will hold hearings on the future of America’s space program. The Senate will also consider consumer data privacy regulations, rural broadband investments, and military applications of artificial intelligence. On Tuesday, a pair of events at the Brookings Institution will look at the impact of technological advances on public policy, as well as the artificial intelligence race between the U.S. and China.

The U.S. Supreme Court’s 2013 ruling in Association for Molecular Pathology v. Myriad Genetics changed the landscape of what is considered patentable material in the context of genetic inventions. In the five years since Myriad, companies have pushed the boundaries of patenting certain types of genetic materials. Despite Myriad’s express statement that it was not considering “the patentability of DNA in which the order of the naturally occurring nucleotides has been altered,” the courts have not yet established the contours of how much nucleotide sequences need to be altered in order to “create something new” in order to be patentable. However, as we discuss in the next section, we expect the Court to address these questions as biotechnology companies increasingly invest resources into emerging, expensive technologies involving genes and seek to protect their investments through patents.