Posts Tagged: "Patent Reform"

This week in Other Barks & Bites: The Federal Circuit has asked USPTO Director Andrei Iancu to brief the appellate court on deference that should be paid to precedential PTAB opinions; China announced that it will create a credit rating mechanism for patent agents; Russ Slifer Op-Ed revives 101 debate; the FCC will approve the proposed T-Mobile/Sprint merger; amicus briefs filed at the Supreme Court support the abrogation of state sovereign immunity against copyright claims; Nintendo ramps up copyright campaign against YouTube accounts using video game music; Guns N’ Roses settles trademark dispute over craft beer brand; and copyright troll entity Malibu Media faces investor lawsuit.

Last week, the Patent Trial and Appeal Board (PTAB) issued 18 institution decisions based on petitions for inter partes review (IPR) proceedings, instituting 10 and denying eight. One of those denials ended a petition from Apple to challenge a touch screen patent owned by Nartron, although the PTAB instituted two other IPRs on the same patent the following Monday, giving rise to questions about whether the U.S. Patent and Trademark Office is effectively dealing with the issue of multiple petitions at the PTAB. Elsewhere, a pair of KOM Software patents asserted in separate district court proceedings against NetApp and Hewlett Packard each had two IPRs instituted against them after the patent infringement defendants teamed up to file petitions.

This week in Other Barks & Bites: The Federal Circuit issues several precedential decisions, including one reviving the patent claims in VirnetX and another determining that America Invents Act (AIA) validity trials don’t violate the Fifth Amendment’s Takings Clause in Celgene. This week in Other Barks & Bites: The Federal Circuit issues several precedential decisions, including one reviving the patent claims in VirnetX and another determining that America Invents Act (AIA) validity trials don’t violate the Fifth Amendment’s Takings Clause in Celgene; the USPTO proposes fee increases to patent examination and AIA trials and issues a final rule on e-filing in trademark registrations; Katy Perry is ordered to pay $2.7 million for copyright infringement; free OTA TV service Locast is targeted in a copyright suit filed by Disney and other major broadcasters; Pfizer and Mylan consider creating a global giant in off-patent drugs; the University of California files patent suits against major retailers over LED light bulb technology; and patent applications listing artificial intelligence machine inventor are filed in patent offices across the world.

Yesterday, 24 law professors, former Chief Judges of the Federal Circuit and former heads of the U.S. Patent and Trademark Office (USPTO) sent a letter to Senators Thom Tillis (R-NC) and Chris Coons (D-DE) and Representatives Jerrold Nadler (D-NY) and Doug Collins (R-GA) aimed at correcting what the letter characterizes as “misapprehensions of law and misleading rhetoric” on the subject of pending patent reform legislation. The letter makes specific reference to statements made by the American Civil Liberties Union (ACLU) claiming that the draft legislation to amend Section 101 of the patent law “if enacted would authorize patenting products and laws of nature, abstract ideas, and other general fields of knowledge.” The authors of yesterday’s letter, which included Retired Federal Circuit Chief Judges Randall Rader and Paul Michel and former USPTO Directors Todd Dickinson and David Kappos, called such statements “profoundly mistaken and inaccurate” and laid out in detail the specific inaccuracies. Rather than expanding the scope of 101 to abstract ideas and laws of nature, said the letter, “the proposed amendments preclude ‘implicit or judicially created exceptions to subject matter eligibility,’” and do not eliminate existing constitutional and statutory bars.

With more dissents than any other Federal Circuit Judge in history,  Judge Pauline Newman is driven by a need to safeguard our national system of innovation. Judge Newman has argued throughout the years that the Federal Circuit was created to rebuild and renew the patent system to encourage and incentivize industry, which is precisely the purpose both the Carter and Reagan Administrations had in mind when advocating for the creation of the Federal Circuit, which ultimately took form in 1982. Judge Newman has no qualms about speaking out in dissents when the objective of the Federal Circuit to bring certainty to U.S. patent laws is being hindered, in her view, by the majority, regardless of the complexities or dollar-values at stake in the case. In fact, in one interview she declared, “I have not hesitated to comment when I think that a panel isn’t going in quite [the] appropriate direction. Others have felt that perhaps I haven’t gone in quite the appropriate direction . . . . [A]ll in all it seems to me that it’s quite healthy to present a certain amount of turmoil to practitioners in the short run. But in the long-run I think the law is better for it.” George C. Beighley, Jr., “The Court of Appeals for the Federal Circuit: Has It Fulfilled Congressional Expectations?,” 21 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 671, 675–76 (2011). Clearly, she is interested in getting the law right for the greater good as she sees it, regardless of the impact her dissent may have on relationships or status quo.

The United States is looking to antitrust law to break up big tech. Later today, for example, the House Subcommittee on Antitrust, Commercial, and Administrative Law will be meeting for a hearing on “Online Platforms and Market Power, Part 2: Innovation and Entrepreneurship.” Unfortunately, this may have become necessary, but it will not solve the problem of big tech monopolies. That can only be solved by understanding how big tech creates megamarkets and how they use shadow patent systems to regulate and perpetuate their monopolies—a power traditionally reserved for sovereigns. A patent is nothing but an exclusive right. All it can do is remove an infringer from the market. That incredible power enables startups to attract investment, commercialize new technologies, and challenge incumbents. The value of a patent is dependent on demand and market size. Since national borders establish the market size, the larger the country, the larger the market, and the more valuable a patent can become. But big tech markets are not restricted to national borders, so they get larger. Apple has 1.4 billion active devices reaching four times the 327 million population of the United States.

I recently authored an article for IPWatchdog arguing that the Federal Circuit in ChargePoint Inc. v. SemaConnect, Inc., (2018-1739) effectively overruled the new U.S. Patent and Trademark Office (USPTO) patent eligibility guidance. In my opinion, the ChargePoint decision was the very case that the Supreme Court in Alice Corp. v. CLS Bank warned would swallow all of patent law. After all, the Federal Circuit had the opportunity to take the Court’s caution seriously and interpret the abstract-based eligibility decision narrowly. It did not. Hoping for the remote chance the court will correct its error, I filed an amicus brief seeking rehearing en banc. My blunt assessment of the court’s reasoning and repercussions has been called inflammatory by SemaConnect. But it was the Supreme Court’s warning, not mine.

This week in Other Barks & Bites: The Trump Administration’s Final Rule that would have required list prices of drugs to be displayed in television ads is blocked by the U.S. District Court for the District of D.C.; the STRONGER Patents Act is reintroduced into both houses of Congress; the leadership of the Senate IP Subcommittee releases a statement on the splintered Federal Circuit en banc denial in Athena; the U.S. Copyright Office designates the mechanical licensing collective; Huawei is the top earner of Chinese patents thus far in 2019; Intel enters a period of exclusive talks in its wireless patent auction; T-Mobile and Sprint extend their merger deadline; Amazon launches initiative to retrain 100,000 employees for high-tech positions; and major drugmakers ask the Supreme Court to take up a patent case involving functional claiming issues.

Through the first half of June, a series of hearings on the state of patent eligibility in America held by the Senate Intellectual Property Subcommittee rendered a variety of interesting exchanges regarding current U.S. subject matter eligibility under Section 101 relating to various important sectors of the U.S. economy. During the second hearing, Senator Richard Blumenthal (D-CT) talked to panelists regarding his concerns about patent abuses in the pharmaceutical industry. During his period of questioning, Blumenthal grilled witnesses on the subject of whether the expansion of subject matter eligibility that would result from the proposed Section 101 draft text would exacerbate issues related to “patent thicketing,” a process by which drug companies attain large patent portfolios covering various aspects of a single drug formulation. Along with Senators Thom Tillis (R-NC) and Mazie Hirono (D-HI), Senator Blumenthal entered a series of questions for the record to be answered by panelists attending the recent patent eligibility hearings. Although the questions don’t overtly single out the pharmaceutical industry, panelist answers largely indicate that this sector was on most people’s mind while responding.

Senator Chris Coons (D-DE) and Congressman Steve Stivers (R-OH) reintroduced the STRONGER Patents Act of 2019 today in an event on Capitol Hill. Coons first introduced the STRONG Patents Act in 2015, which then became the STRONGER Patents Act in 2017. This latest iteration, like the iterations before, seeks to take a number of steps to strengthen patent protections and…

I don’t really know why we need the Federal Circuit anymore. Witness the denial of en banc rehearing in Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC on July 3. This denial of rehearing provoked eight separate opinions, with no single opinion achieving more than four judges in support. With 12 judges deciding whether to rehear the case en banc that means no single opinion gained support from more than one-third of the Court. And that opinion that gained the most support was a dissenting opinion, meaning those judges wanted to rehear the case and specifically said that the claims “should be held eligible”.  In fact, as Retired Chief Judge of the Federal Circuit, Paul Michel, noted yesterday, “all 12 active judges agreed that the Athena patent should be deemed eligible, even though seven judges apparently felt helpless in view of Mayo.”  The truth is the Federal Circuit is not helpless. The Federal Circuit is choosing to interpret Mayo—on the life science side—and Alice—on the software side—expansively. The Federal Circuit has one primary job, which is to bring stability and certainty to U.S. patent laws. It would be easy to distinguish both Mayo and Alice, but rather than recognize the peculiar facts of these cases as representing the most trivial of innovations, the Federal Circuit has used Mayo to destroy medical diagnostics and Alice to destroy software. More analytical prowess would be expected from a first-year law student.

The U.S. Senate gets busy today with hearings on the tech world’s impacts on America’s youth as well as NASA’s plans for manned missions on the 50th anniversary of Apollo 11. On Wednesday, Senator Coons and Representative Stivers will reintroduce the STRONGER Patents Act, which is aimed at strengthening the patent system and promoting innovation. NASA’s plans to commercialize low Earth orbit will also be discussed in the House of Representatives, along with biometric technologies employed by the Department for Homeland Security and cybersecurity threats to the U.S. energy grid. Around the U.S. capital, both the Brookings Institution and the Information Technology and Innovation Foundation will look at tech issues involved in the current trade war between the U.S. and China. ITIF will also explore the potential use of antitrust law to break up American tech giants on Thursday.

The Court of Appeals for the Federal Circuit was created to provide much-needed clarity and consistency to the nation’s patent law. In prior decades, the law had become hopelessly confused and incoherent due to disparate decisions of the regional courts of appeals. Two successive presidential commissions called for rectifying the situation because U.S. industrial competitiveness was lagging, and industries were faltering as a result of the weakness that had compromised the effectiveness of the patent system. For the previous century-and-a-half it had helped transform the country from a poor, agrarian land into the most advanced, powerful and wealthy nation on earth. In the 20th Century, nearly every significant scientific invention was created in America. But that was beginning to fade in the 1970s and beyond. Congress responded in 1982 by creating the Federal Circuit to hear all patent appeals…. These welcome developments increased incentives to invest in expensive research and development and the even more costly process of commercializing new inventions, putting new cures, products and services into the public’s hands and onto store shelves. In just the last few years, those incentives have lagged again due to sudden increases in uncertainty in the patent system, particularly regarding eligibility.

Inventors are seeing the light and are looking increasingly to the East for protection of their patents. Specifically, to China, where patent protection was once non-existent; China has overhauled its patent system and become more attractive to inventors than the once mighty USPTO. In 2016, the State Intellectual Property Office of the People’s Republic of China (SIPO) received 1.3 million patent applications. That’s more than the combined total for the United States Patent and Trademark Office (USPTO; 605,571), the Japan Patent Office (JPO; 318,381), the Korean Intellectual Property Office (KIPO; 208,830) and the European Patent Office (EPO; 159,358).

On July 3, the Court of Appeals for the Federal Circuit denied en banc rehearing in Athena Diagnostics v. Mayo Collaborative Services. The 86-page order from the Federal Circuit includes eight separate opinions—four concurring with the en banc denial and another four dissenting from the decision. The separate opinions reflect a Federal Circuit that isn’t divided so much on the issue of the importance of Athena’s now invalidated patent claims but, rather, the application of the U.S. Supreme Court’s Section 101 jurisprudence under Mayo Collaborative Services v. Prometheus Laboratories (2012). Throughout the opinions, it seemed clear that the Federal Circuit was eager to have the Supreme Court take this case up on appeal in order to clarify Mayo’s judicial exception to laws of nature and its impact on patent claims covering medical diagnostics.