Posts Tagged: "Senator Orrin Hatch"

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.

When patents were brought up in the hearing, however, it seemed to focus mainly on their effects in the pharmaceutical world. Ramirez’s prepared remarks for the hearing touched on pay for delay in pharmaceutical patent infringement settlements, and she noted that the U.S. Supreme Court’s June 2013 decision in Federal Trade Commission v. Actavis has given the FTC a greater capacity to challenge pay for delay schemes in court. Ramirez also stated that a report on the FTC investigation into patent assertion entities (PAEs) will be made available sometime this spring.

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.

Now it is time for Trump to call for a vigorous debate on the Trans Pacific Partnership Treaty (“TPP”) to demonstrate his expertise on matters of strategic national and international economic importance. The TPP, now pending before Congress, makes many changes to the US patent system and some in Congress such as Senators Orrin Hatch (R-UT) and Rob Portman (R-OH) have already expressed opposition because of how it weakens American intellectual property rights. Trump should challenge Senators Rubio and Ted Cruz to debate the TPP with their Senate colleagues now rather than wait for the lame duck Congress, when many politicians newly unaccountable to voters could do strange things.

Earlier today the Senate Judiciary Committee held a hearing on the Defend Trade Secrets Act, which is authored by U.S. Senators Chris Coons (D-DE) and Orrin Hatch (R-UT). This is an important issue for Congress because trade secret theft puts American jobs at risk and threatens incentives for continued investment in research and development in the United States. Currently, civil trade secret laws can and do vary state-to-state, and while the differences may not be substantively large it is truly odd that in a global economy the United States has left trade secret law to the States to individually regulate. It is long since time for Congress to act.

Fears about trade secret trolls are based in mythology, not on fact. If those claiming federal trade secret legislation would lead to trade secret trolls actually understand trade secret law they simply couldn’t possibly come to a conclusion that there is any risk there will be a single trade secret troll, let alone some kind of zombie-like rise. Simply stated the fear is pure fiction. In addition to seeing absolutely no evidence of trade secret trolls on the State level, trade secrets require a relationship or some nexus between the parties to the dispute. You simply cannot commoditize trade secret litigation in the same way patent trolls can and do commoditize patent litigation.

At the end of a three-hour long hearing held by the U.S. Senate Committee on the Judiciary this Thursday, June 4th, S.1137, the proposed legislation known as the PATENT Act, was approved to move to the floor of the United States Senate by a 16-4 vote of the Senate committee. Proponents of the bill lauded the bipartisan support which brought the bill committee approval. Interestingly, a small but vocal bipartisan minority has developed, a couple of whom have pledged to continue debate aspects of this legislation which they fear will pose a threat to American innovation.

Senators repeatedly brought up the Hatch-Waxman legislation. One after another Senators discussed how inter partes review (IPR) of pharmaceutical patents at the United States Patent and Trademark Office (USPTO) has, in an unanticipated way, upset the delicate balance reached in Hatch-Waxman to ensure that generic drugs would come to market quickly. Those familiar with IPR and Hatch-Waxman will undoubtedly recognize that this concern is entirely misplaced. A successful IPR would result in the immediate death of patent claims, which would inure to the benefit of all generics, which would in fact result in generics entering the market quickly.

According to Grassley’s office, the amended PATENT Act will provide important reforms for the way that the Patent Trial and Appeals Board (PTAB) of the United States Patent and Trademark Office (USPTO) operates. For instance, the managers amendment would: (1) Require the PTAB to apply the claim construction standard used in federal district court (i.e., the Phillips standard) and further requires the PTAB to consider if claims have previously been construed in district court. (2) Makes explicit that for purposes of PTAB adjudications patents are presumed to be valid, although does so retaining the current law providing that the petitioner has the burden to prove a proposition of unpatentability by a preponderance of the evidence. (3) Makes clear that the Director has discretion not to institute an IPR or PGR if doing so would not serve the interests of justice. (4) Allows patent owners to submit evidence in response to a petition to institute an IPR or PGR, and petitioners to file a reply to respond to new issues. (5) Directs the PTO to modify the institution process so that the same panels do not make institution and merits decisions. (6) Directs the PTO to engage in rulemaking in order to institute a Rule 11-type obligation in IPR and PGR proceedings.

Time and time again throughout the legislative history post grant proceedings were explained as being a faster, low-cost alternative to litigating validity disputes in Federal District Court. That being the case, it would seem extremely odd that any petitioner could bring a post grant challenge to a patent when that petitioner would not have standing to sue to invalidate the patent in Federal District Court. However, the statute does say that a person other than the patent owner can file a petition to institute an inter partes review.

According to Congressman Collins, who I spoke with via telephone on Friday, March 6, 2015, there was a great deal of treatment of the SEA at the subcommittee level during the 113th Congress, but now during the 114th Congress consideration will move to the full Committee level, which suggests a seriousness about getting something done. ”Music licensing will be an area where something bubbles up this Congress,” Collins explained. ”I’m hoping the industry will come together.”

Michelle Lee, the current Deputy Director of the United States Patent and Trademark Office, was once again in front of a Senate Judiciary Committee panel yesterday, answering questions during her confirmation hearing. Lee, who would take over the vacant position of Director of the USPTO if confirmed, had already been subject to one confirmation hearing in December 2014. With little time before the end of the 113th Congress, then Ranking Member Senator Charles Grassley (R-IA), informed Lee and the Senate panel that no vote would be taken in the 113th Congress and new members of the Judiciary Committee would be given the opportunity to ask questions prior to a vote in Committee during the 114th Congress, which started January 6, 2015. Newly elected Senators Thom Tillis (R-NC) and David Perdue (R-GA) did take the opportunity to ask questions.

In the Senate the Judiciary Committee is where any action relating to intellectual property reform will be played out. Key Republican Senators on the Judiciary Committee, including Senators Grassley, Cronyn and Hatch, are on record as saying that more patent reform is on the horizon. Thus, the question is not if the Senate will take up patent reform during the 114th Congress, but rather how quickly it will be brought up in Committee. Additional patent reform in 2015 seems like a nearly foregone conclusion, but when everyone starts thinking that patent reform has a way of going no where fast, or at least that has been the history of patent reform in Congress.