Posts Tagged: "114th Congress"

The day’s most withering criticisms, however, came from the House science committee’s ranking Republican, Rep. Lamar Smith (R-TX). Smith contended that NOAA’s problems had been debated by the committee for years and focused on the delays and rising costs of the current JPSS program. “Congress should not continue to fund an over-budgeted program that has not performed to standards,” he said. He added that he wasn’t convinced that the NOAA is adequately addressing weather data gap risks and said they were “dragging their feet” on considering options. “If NOAA’s afraid of innovation, maybe they shouldn’t be in the business of deciding what technologies are needed to improve forecasting,” Smith said.

Corrosive changes in patent law are undermining research university commercialization of patented, federally-funded basic research, endangering our nation’s innovation ecosystem. Mounting uncertainty repels private investment needed to convert new discoveries into innovative public benefits. Prominent investment destabilizers include: post development invalidation, big-tech’s efficient infringement, increased costs of patent enforcement, looming congressional patent reform, and foreign IP theft and price/access manipulation. Collectively these uncertainties can crumble our country’s world-class innovation ecosystem. We must use the limited time left to reverse that catastrophic outcome by seizing every opportunity to do so.

Congress can, and should, take at least four steps in restoring the health and vitality of our patent system: First, Congress should ensure that the patent grant is meaningful and valuable in the first instance. Second, Congress should reaffirm the exclusive nature of the patent grant. Third, Congress should clarify, and perhaps legislatively overrule, the cases addressing patent eligible subject matter, Alice, Mayo, and Myriad. Fourth, and finally, Congress should tread extremely carefully in the realm of so-called patent litigation reform.

In the world of messaging services, the cross-platform mobile messaging app WhatsApp enjoys the enviable position of being the world’s most popular messaging service, eclipsing one billion monthly active users as of this February. Owned by Facebook Inc. (NASDAQ:FB), WhatsApp’s user base even outpaces that of Facebook’s flagship messaging service Messenger. Over on Capitol Hill, WhatsApp’s encrypted messaging services has been drawing strong language from those perceiving the technology as a possible security threat.

Earlier today the United States House of Representatives passed S. 1890, the Defend Trade Secrets Act of 2016 (DTSA), by a vote of 410-2. Only Congressman Thomas Massie (R-KY) and Congressman Justin Amash (R-MI) voted against the bill. Even before the Senate passed the DTSA the Obama Administration voiced strong support for the bill, therefore, it is expected that President Obama will quickly sign the bill into law over the next several days.

Where an ex parte order is unavailable under the DTSA, complainants may still seek injunctive relief. However, unlike the UTSA, which also offers injunctive relief, the DTSA includes language providing that an injunction is improper and not issuable if it: (1) prevents a person from entering into an employment relationship, or if conditions placed on employment are not supported by evidence of threatened misappropriation, or (2) otherwise conflicts with an applicable state law prohibiting restraints on the practice of a lawful profession, trade, or business.

Trade secrets are the only major type of intellectual property (IP) that is not backed by U.S. federal civil remedies to compensate owners for theft. Notably, American businesses face hundreds of billions of dollars in losses per year due to trade secret misappropriation, and the problem is worsening, as cybertheft (particularly from China) continues to grow in scale… Appropriately crafted civil trade secret legislation is no panacea, but it holds the promise of providing tangible benefits, not just to private trade secret holders, but to the overall economy. In addition to vindicating property rights and protecting individual businesses, such legislation should enhance the effectiveness of the competitive process and thereby raise economic welfare.

In today’s political climate, any bipartisan legislative action is, well, unusual. Unanimous votes are like unicorns. But one happened yesterday, as the Senate voted 87-0 to approve the Defend Trade Secrets Act, S.1890. The DTSA does not preempt state laws, but provides trade secret owners with another, optional forum when the subject matter of the trade secret relates to interstate commerce. This means that local disputes will for the most part continue to be litigated in state courts, but for cases that can use the special advantages provided by nationwide service of process and a single set of rules across multiple jurisdictions, plaintiffs are likely to use the federal option.

Earlier today the White House released a Statement of Administration Policy, which strongly supports passage of s. 1890, the Defend Trade Secrets Act of 2016 (DTSA). The policy statement explained: ”The Administration strongly supports Senate passage of S. 1890, the Defend Trade Secrets Act of 2016… S. 1890 would establish a Federal civil private cause of action for trade secret theft that would provide businesses with a more uniform, reliable, and predictable way to protect their valuable trade secrets anywhere in the country.”

Despite being grossly unfair to small inventors, the courts are routinely transferring cases to a venue containing the headquarters of the infringing multinational corporation, as happened in this case. Often cases are moved thousands of miles requiring outside counsel, travel, additional motions and legal work and other costs. Often the new venue is not experienced in patent cases and may take years longer to conclude the litigation. Part of the strategy for defendants is to fight a costly war of attrition against independent inventors and small businesses. Eventually they will be forced to give up. That is why patent reform that impacts venue matters so much, it is about raising costs, tipping the scales of justice and beating innovators into submission using procedural rules.

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.

Small businesses and independent inventors are critical to revolutionary advancement of American technology. They file over 20% of the applications at the USPTO, and their patents are more likely to encompass breakthrough inventions, rather than incremental change. While Congress has considered a range of legislative reforms, the other branches of government have also been moving forward with challenges confronting the patent system. It is important for America that we get this right. Thoughtful legislation can further improve the patent system and lead to more job creation and economic growth as long as we remember that it is the patent system fuels America’s innovative spirit.

It is pure nonsense to say that opponents of patent reform never offer specifics, cite or discuss textual language of the bills. Utter fiction and complete fantasy. Frankly, Lee’s claims are as comical and insulting as they seem to be uninformed. Only the most disingenuous partisan could suggest that opponents of patent reform do not offer specific explanations citing to textual language of the bills. Indeed, quite the opposite is true. Opponents of patent reform make far more detailed and nuanced arguments. These intellectual, detailed, nuanced arguments have lead those fighting patent reform to lose the linguistic battle time and time again. So not only is what Lee saying false, but it is 180 degrees opposite from reality. So spurious are Lee’s claims that at first glance the article comes across as a piece of patent satire published by The Onion.

As interesting as the Senate may become when patent reform resurfaces, the dynamic in the House will be fascinating for many reasons. Since patent reform stalled there is a new Speaker of the House, Paul Ryan (R-WI). Speaker Ryan has said he plans to return the House to regular order and allow business to trickle up from members to the full House rather than have legislation forced down from leadership on Members. It is widely known that Goodlatte and Issa continue to want more patent reform and are seeking opportunities to push forward to a vote in the House. Will Speaker Ryan allow the Innovation Act to come to a vote in the House?

The first meeting this week was in Grundy Center, IA, during which a question about patent reform was asked. Grassley answered that he was trying to stop patent trolls, which he described as a person who buys up patents but never intends to build a product, and then sends threatening letters to small businesses demanding thousands of dollars or they will get sued. Notably, he said that it costs our economy $83B per year.