Posts Tagged: "Senate IP Subcommittee"

Today is Alice’s fifth birthday; some may not be celebrating, but as a birthday gift, John Vandenberg argues the decision was not new law and should not be abrogated. – On the third day of the U.S. Senate Judiciary Committee – IP Subcommittee’s hearings this month on whether to radically revise the standards for patent eligibility, I testified on behalf of our patent system’s under-appreciated second engine of innovation. Below are some of the key arguments I made in my oral and written testimony and my thoughts on why the Alice Corp. v. CLS Bank decision was good law that should not be abrogated. Much of the anti-Alice commentary touts our patent system’s first engine of innovation, which uses the lure of monopoly profits or royalties to incentivize innovation and the public disclosure of those innovations. Today’s Sec. 101 jurisprudence is said to harm that first engine of innovation, particularly in life sciences where it is easier to get a patent in Europe and China than in the U.S., causing investment in personalized therapy and medicine R&D in the U.S. to suffer. While some question those factual premises, the “101 status quo” camp primarily responds that Alice (along with IPRs) has curtailed abusive patent troll litigation, cutting patent litigation costs by 40% or more. But, another important point has received little attention: expanding what can be patented, and how claimed, risks harming our patent system’s second engine of innovation.

Last week, all eyes were on the first two days of historic Senate Judiciary IP Subcommittee Hearings, led by Senator Thom Tillis (R-NC), Chair of the Subcommittee, and Senator Chris Coons (D-DE), Ranking Member of the Subcommittee. The purpose of the hearing was simple: to determine a fix for the disaster foisted upon the industry by the patent eligibility jurisprudence of the Supreme Court of the United States. The testimony of the first 30 witnesses has already been summarized, so there is no need for me to dive into the particulars of who said what here. Suffice it to say that the Subcommittee heard a range of opinions—some better supported than others.

This week on Capitol Hill, the Senate IP Subcommittee will hold its third and final hearing on patent eligibility issues that currently exist in the U.S. patent system. Elsewhere in the Senate, hearings will focus on privacy issues posed by data brokers as well as Federal Communications Commission oversight. Hearings over at the House of Representatives will discuss topics including NASA’s science mission, sexual harassment issues within the scientific professions, and research leading towards increased use of renewable energy sources. The Information Technology and Innovation Foundation will also host an event to explore new tax models affecting U.S.-based Internet services companies.

The first of three scheduled hearings in which the Senate IP Subcommittee will hear testimony from a total of 45 witnesses on the subject of patent eligibility law raised many questions. While some read the proposed draft bill released by Congress last month as clearly overturning AMP v. Myriad, for example, Senator Chris Coons (D-DE), Ranking Member of the Senate IP Subcommittee, said today that was not his intention. In his opening statement, Coons pushed back against an article published on Monday by The Washington Post, which indicated that the proposed draft bill to revise Section 101 would enable the patenting of genes. Coons called the article “significantly misleading” and noted that “our proposal would not change the law to allow a company to patent a gene as it exists in the human body. I believe I speak for the Chairman and myself when I say we do not intend to overrule that holding of the 2013 Myriad decision.” The concerns leading to the Washington Post article arose in recent days, after the American Civil Liberties Union (ACLU) released a statement and held a phone briefing for Congressional staffers claiming that the proposed draft bill would enable the patenting of genes. Sherry Knowles, Principal of Knowles Intellectual Property Strategies and one of the witnesses at today’s hearing, penned a rebuttal of the ACLU’s position that IPWatchdog published on Monday. Knowles spoke in the second panel of today’s hearing and said she hopes the proposed bill would in fact overturn the Myriad decision because “there’s been a dead stop in research in the United States on isolated natural products. The highest public interest is life itself and that has to be the goal of this statute.”

This morning, the American Civil Liberties Union (ACLU), which will be represented in Wednesday’s hearing on Section 101 reform by Senior Legislative Counsel Kate Ruane, announced an urgent phone briefing for members of Congress and staff to address the contention that the “Proposed Patent Bill Would Jeopardize Health Care and Harm Medical Research.” The phone briefing, which all interested stakeholders should join, takes place today at 2:30 pm EST and will be jointly held by representatives from the ACLU, the Association for Molecular Pathology, a breast cancer survivor and patient, My Gene Counsel, and Invitae. Anyone who would like to listen should dial in to the number provided here. Below, Sherry Knowles, a well-known patent attorney, policy expert and also a breast cancer survivor, rebuts the arguments made in both the ACLU’s briefing announcement and associated letter to Congress on this topic.

Tuesday and Wednesday of this week will be exciting days for patents, technology and innovation in America. The Senate IP Subcommittee will hold a pair of hearings exploring patent eligibility issues facing U.S. inventors and innovators and will hear from a total of 30 witnesses over the course of both days. In the latest development, those who oppose reforms to Section 101 are briefing staffers on the Hill today in an attempt to conflate the 101 and drug pricing/ gene patenting debates. More on that later. Other Senate hearings will explore controls on sales of tech to China, promoting American leadership in nuclear energy, changes in the TV and digital video marketplace and legislative efforts to protect taxpayer-funded research from foreign espionage. In the House of Representatives, committees will focus on the use of facial recognition technologies by law enforcement and reauthorizing consent frameworks for retransmissions of copyrighted TV broadcasts. The American Enterprise Institute will also hold an event on Wednesday to look into new technologies that support child welfare activities.

On the afternoon of Wednesday, April 3, the Senate Committee on the Judiciary’s Subcommittee on Intellectual Property held a hearing titled Trailblazers and Lost Einsteins: Women Inventors and the Future of American Innovation. The day’s discussion on the U.S. Patent and Trademark’s recent report on gender disparity in patenting rates covered much of the same ground as the House Intellectual Property Subcommittee’s hearing on the same topic from the previous week, although a new witness panel was able to provide some fresh perspective on the issues. However, there were arguably some instances where the witnesses either supported or acquiesced to policies that damage the patenting prospects for at least some female inventors.

Today, April 3, the Senate Subcommittee on Intellectual Property held a hearing titled Trailblazers and Lost Einsteins: Women Inventors and the Future of American Innovation—a topic that also was considered last Wednesday by the House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet in their first hearing of the term. The House hearing was titled, Lost Einsteins: Lack of Diversity in Patent Inventorship and the Impact on America’s Innovation Economy and, like today’s Senate hearing, focused on a recent report on female inventorship released by the U.S. Patent and Trademark Office (USPTO) and featured testimony on how to improve rates of female inventorship from a collection of women in fields having strong ties to the U.S. patent system. Susie Armstrong, Senior Vice President of Engineering for Qualcomm, Inc., said that, for companies like hers that were trying to take the lead in 5G mobile networks and other areas of innovation, more great tech minds from underrepresented communities were needed. An inventor herself who helped create single packet data communications that allowed cell phones to access the Internet for the first time, Armstrong said that Qualcomm had produced educational initiatives like the Thinkabit Lab, which partners with school districts and libraries to encourage students to innovate in the Internet of Things (IoT) sector.

This week on Capitol Hill will include a series of hearings related to tech and innovation topics on Tuesday at the House of Representatives, where debate will focus on the 2020 budget for NASA and the National Institutes of Health, as well as on technology issues at Veterans Affairs. Senate hearings will take a look at Alzheimer’s research and funding for the Department of Energy. On Wednesday, the Senate IP Subcommittee will hold a hearing to look at gender diversity issues in the U.S. patent system. Elsewhere in D.C., the Cato Institute will look at Medicare drug pricing issues, a topic which has increasingly included discussion of patents, and the American Enterprise Institute will consider consumer data privacy issues in a two-hour event featuring officials from the Federal Trade Commission and Department of Justice.

Over the last 15 years, Congress, the courts and the USPTO have gutted the patent system. Fortunately, USPTO Director Andrei Iancu has been taking important steps to reverse some of the damage, with revised 101 guidance and changes in the Patent Trial and Appeal Board (PTAB). But the most important thing Iancu is doing is silencing the big tech “patent troll” narrative. False political narratives condense complicated issues into an object and then villainize the object. Once a villain is created, its evil can be expanded to encompass anything you don’t like. When you have pushed enough bad stuff into the moniker, you can simply state its evil name, add a few campaign contributions, and Congress will magically pass laws in your favor to kill the villain. The “patent troll” narrative has been valuable to big tech. It bought the laws they needed to perpetuate their monopolies. With Iancu silencing the “patent troll” narrative, big tech created a new one: “bad patents”.

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.