Posts Tagged: "innovation"

This week in Washington IP news, the World Intellectual Property Organization (WIPO), the United States Patent and Trademark Office (USPTO) and others celebrate World Intellectual Property Day with multiple events. A House subcommittee holds a hearing overseeing recent developments at the USPTO. The Senate is also in session as it discusses the two new finalized rules from the Small Business Administration on expanding capital access to small businesses.

On April 20, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential opinion in FS.com v. International Trade Commission affirming the ITC’s determination that fiber optic cable distributor FS.com violated 19 U.S.C. § 1337 by importing goods infringing upon patent claims owned by Corning Optical Communications. This relatively short Federal Circuit decision dealt mainly with FS.com’s enablement arguments on appeal, which the appellate court nixed after finding that skilled artisans would understand an inherent upper limit to allegedly open-ended claims on fiber optic connection densities.

The European Union is reportedly considering sweeping new regulations for the licensing and litigation of standard essential patents (SEPs), which make fair-minded observers wonder whether any sane adults are in charge at the European Commission (EC). The EU’s proposed new regulatory regime is scheduled to be released on April 26 by the Directorate for the Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) of the European Commission (EC). And recently leaked drafts suggest that proposal will contain sweeping new regulations that will effectively put an end to the licensing and litigation of SEPs as it exists today.

There are often situations where a company has come into contact with intellectual property that it cannot allow to spread to a product in development. One example is a joint development project between two companies where the IP for the jointly developed product cannot seep into other products but where each company must develop products that interface with the jointly developed one. This situation can occur when groups create standards that involve IP from various sources.

In late March, news broke that the European Commission was drafting sweeping regulations on the licensing of standard essential patents (SEPs). Commentators predict the draft will be released in late April and, although this is an early draft that will likely evolve, below we offer the following initial observations. In its current form, the new regulatory framework would encourage increased transparency in SEP licensing through several new policies and procedures. In particular, the regulations would establish a “competence center” at the European Union Intellectual Property Office (EUIPO) to act as a sort of clearinghouse for SEP issues (both technical and economic). The EUIPO does not currently have patent expertise; EP patents are the purview of the European Patent Office (EPO), which is separate from the European Union and includes non-EU members.

Although the mining and metallurgical sectors are still seen as environmentally unfriendly industries, innovation in these sectors has been increasing since the beginning of the century, including in the development of green technologies. Four years ago, the World Intellectual Property Organization (WIPO) released a study measuring innovation in the mining industry with patents, “Mining patent data: Measuring innovation in the mining industry with patents”, showing a sharp increase in the number of correlated patent applications since 2005, which is a clear sign of the growth in investments in R&D and innovation made by these industries.

The Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing today featuring a panel of patent-savvy witnesses to underscore the crucial role intellectual property plays in the U.S. economy and to define the biggest threats to IP rights, both foreign and domestic. The conclusion of most panelists as to what one step is most important in reestablishing the United States as an IP powerhouse was that we need to clean up our own IP system at home in order to even begin addressing threats from foreign competitors like China.

The Council for Innovation Promotion (C4IP) on Monday held a webinar featuring some big names in the IP world to clear up what the organization characterizes as misguided views on the use of Title 28 of the U.S. Code, Section 1498(a). The event was prompted in part by a recent U.S. government statement of interest filed in a patent infringement suit against Moderna, Inc.’s COVID-19 vaccine. That statement argued that Moderna should be released from infringement liability under the terms of a government contract that “authorize[d] and consent[ed] to all use and manufacture” of any U.S. patented invention.

Just when you think you have enough things to worry about, you stumble  upon  one more. In its wisdom, Congress enacted a “Medicare Drug Price Negotiation Plan” as part of the Inflation Reduction Act. The program kicks in by imposing “maximum fair prices” for drugs as determined by the Centers for Medicare & Medicaid Services (CMS). In setting these prices, Congress included such factors as the R&D costs for each drug and whether they have been recovered and the current cost of producing and distributing the drug in question. But it was the third criteria which caught my eye—“Prior Federal financial support for novel therapeutic discovery and development with respect to the drug.”

This week in Washington IP news, the Senate and House are back in session and holding a variety of hearings on departments’ 2024 budget requests, including for the Department of Commerce and the National Science Foundation (NSF). Elsewhere, the Council for Innovation Promotion (C4IP) is holding a webinar on proper use of Section 1498(a) of the U.S. Code; and the United States Patent and Trademark Office (USPTO) is hosting regional events in Central Virginia and Silicon Valley to promote resources available to prospective innovators and entrepreneurs.

U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal held a virtual conversation with the intellectual property (IP) press on Wednesday to coincide with a one-year anniversary Director’s blog post published today. “If last year was about listening…this is really the year where we’re trying to bring that to impact,” said Vidal. Vidal said the work she did in her first year in office was about providing clarity and sometimes learning from “unintended consequences,” but this year is going to be about implementation based on the feedback they’ve been provided via the various requests for comments, listening sessions and other initiatives the Office has undertaken. “We now have more knowledge to shape real policy,” Vidal said.

By now, unless you live in a total IP blackout zone, you’ve heard about the Unitary Patent and Unified Patent Court (UPC). Your friends in Europe, particularly, have been insistent on informing you, whether you want to know or not, with daily (if not hourly) email blasts, since January of this year. But most of what they tell you misses the forest for the trees. Here’s why. Let’s begin at the beginning. Aside from your client telling you to, why do you file a patent application? The only answer is: it is a hedge as to the future. The reason for that is that you and they have no way of knowing at the time of filing whether this will be the “next big thing” or just another “thing”. You might say or even believe that filing an application is about “protection” or potential “revenue”. But it isn’t.

The European Union is considering a new regulatory regime for the licensing and litigation of standard essential patents (SEPs) that will destabilize the global telecommunications market. This proposed regulatory regime is unbalanced in favoring implementers over innovators, and thus it threatens to hamstring the explosive technological and economic growth in this vital sector of the modern innovation economy. Although the EU has finally awoken to the competitive and geopolitical threat posed by China, this regulatory proposal undermines efforts by the EU and the United States to sustain their global technological leadership.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today affirmed in a precedential decision the Patent Trial and Appeal Board’s (PTAB’s) finding that Moderna Therapeutics proved certain claims of Arbutus Biopharma Corporation’s mRNA delivery patent invalid as anticipated. U.S. Patent No. 9,404,127 is titled “Non-liposomal Systems for Nucleic Acid Delivery” and is directed to “an invention that provides stable nucleic acid-lipid particles (‘SNALP’) that have a non-lamellar structure and ‘comprise a nucleic acid . . . methods of making the SNALP, and methods of delivering and/or administering the SNALP.’” SNALP has a three-dimensional structure that is either a lamellar morphology or non-lamellar (pictured).