Posts Tagged: "Congress"

When the America Invents Act (AIA) was before Congress a decade ago, it was heralded as the first comprehensive patent law since the 1952 Act. Ten years’ perspective on the new law, however, shows that its changes to patent policy have been more evolution rather than revolution. The AIA is simply the latest step in the long arc of moving U.S. law toward a more objective and logical patent system—and one that produces more accurate results.

On Thursday, September 9, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) sent a letter addressed to Drew Hirshfeld, performing the functions and duties of the Director of the U.S. Patent and Trademark Office (USPTO), discussing the issue of inconsistent statements made by patent applicants pursuant to their disclosure requirements at the USPTO and other federal agencies, especially the U.S. Food and Drug Administration (FDA). The Senators are asking the USPTO to take swift action to ensure that applicants are disclosing all known prior art at both the USPTO and the FDA.

The U.S. Department of Commerce announced on Wednesday that it has established a National Artificial Intelligence (AI) Advisory Committee that will advise the President and other federal agencies on issues surrounding AI. The Committee will work with the existing National AI Initiative Office (NAIIO) in the White House Office of Science and Technology Policy (OSTP).

This week in Washington IP events, both houses of Congress remain quiet during regularly scheduled work periods. However, the U.S. Patent and Trademark Office (USPTO) will host several workshops including a series of events geared towards patent attorneys to aid their skills in communicating with patent examiners or presenting oral arguments in AIA trials. Elsewhere, the Center for Strategic & International Studies (CSIS) hosts events exploring ways to secure critical supply chains for the United States in batteries and semiconductors, the Heritage Foundation speaks with Retired Admiral Michael Rogers, Former National Security Agency (NSA) Director, on the changing landscape of cyber threats, and the Cato Institute focuses on state efforts to amend medical licensing laws to pave the way for the future of telemedicine.

On August 31, at the request of Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT), the United States Patent and Trademark Office (USTPO) provided a report to Congress analyzing infringement disputes between patent and trademark rights holders and states and state entities. The U.S. Copyright Office produced a similar, much lengthier report, also in response to a letter from Tillis and Leahy, studying whether there is sufficient basis for federal legislation abrogating State sovereign immunity when States infringe copyrights. The Senators’ letters were prompted by the March 2020 Allen v. Cooper Supreme Court decision. While the USPTO report came to no conclusions, the Copyright Office found that “the evidence indicates that state infringement constitutes a legitimate concern for copyright owners.”

Would you believe the following scenario could happen under our patent system? An inventor of a fundamental technology receives a patent less than three months after filing; despite the public disclosure of the patent, industry contemporaries fail to appreciate the invention’s significance for nearly two years; once appreciated, widespread adoption and infringement of the patent ensues. Commanding 50% market share in unit sales of the patented product, the patent holder prevails in patent infringement suits obtaining court injunctions against all major rivals and maintaining a strict no-licensing policy. What happens next during the patent enforcement period would defy all conventional anti-patent narratives:

What would you say about a technology commercialization system that kept on performing even through the worst pandemic in over a century? How about if it improved its performance over the previous year and was a critical factor in developing desperately needed therapies to protect people around the world? Would it seem reasonable that this was something that all of us should highly value and want to protect? You might think so, but some in Washington apparently don’t agree.

June marked the 40th anniversary of the first reported AIDS case. On the anniversary, UNAIDS released a strategy to end HIV/AIDS by 2030, a goal that seemed unthinkable over 40 years ago. Yet since 1981, the innovative scientific community has delivered a series of treatments that revolutionized the outlook for HIV/AIDS patients. Those early days of 1981 were not unlike what we experienced with coronavirus last spring. Hospitals began to see cases of a mysterious pneumonia with few options for how to treat it, just as physicians across the country struggled to identify effective treatments for COVID-19 patients last March. Indeed, Dr. Anthony Fauci – who dedicated 40 years of his career to combatting HIV/AIDS – recalled “the first few years were the darkest years of my medical career, because I was working countless hours taking care of desperately ill young men.”

In recent days, both Google and Apple have lost big patent cases. On August 13, Apple lost a $300 million jury verdict to PanOptis. Also on August 13, Google was found to infringe five Sonos patents at the International Trade Commission (ITC) in an initial determination by Judge Charles E. Bullock, which, if upheld by the full Commission, would block the importation of Google hardware, including Chromecast and Pixels. This likely means that Apple, Google and their big tech allies will use these instances, as well as other recent high-profile patent losses, as evidence of the need for yet more innovation-crippling patent reform. That would be a huge mistake for America at a time when we find ourselves locked in a race for technological supremacy with the Chinese.

In 2001, six years before the iPhone appeared, a futurist named Ray Kurzweil wrote that humankind would cram 20,000 years of technological progress into the century that had just begun. There were skeptics, but today any of the world’s six billion smartphone subscribers can read his essay on their devices practically any time, any place they choose. As we move into an era of Artificial Intelligence (AI), quantum computing, and 5G telecommunications that supports Kurzweil’s vision, we must make sure that our laws and federal agencies match the pace of invention and protect innovators from trolls who would game the legal system and government functions for their ill-gained profit. 

This week in Washington IP events, both houses of Congress are mainly quiet this week except for an executive business meeting hosted by the Senate Judiciary Committee to discuss a pair of bills, including one that would protect venue choices by state attorneys general who have brought antitrust actions against Big Tech firms like Google. Elsewhere, New America discusses efforts to build digital public infrastructure to address access concerns raised during the COVID-19 pandemic, and the Atlantic Council explores advances in data collection and technological developments that can help the scientific community gain a better understanding of the world’s oceans to address social problems like climate change.

Sensing an opening after the Biden Administration’s recent Executive Order put a hold on a pending regulation prohibiting the misuse of the march-in rights provision of the Bayh-Dole Act for price control, Congressional opponents of the law dusted off a ploy that failed in the Obama Administration to try their luck again. They’ve written to Secretary of Defense Lloyd Austin and Health and Human Services Secretary Xavier Becerra urging them to march in to control prices of drugs created from inventions arising from R&D their agencies supported. We likened that aspect of the Executive Order to shooting ourselves in the foot, and it seemed as though it would be a while before we would know if the Administration would pull the trigger or not. With the recent Congressional actions, the day of reckoning may not be far off.

This week in Washington IP news, the House of Representatives remains quiet as it enters a scheduled district work period. However, several Senate committees will host hearings and business meetings, including the Senate Energy Committee which will discuss pending nominations to important science roles within the U.S. Department of Energy, and the Senate Homeland Security Committee which will explore several bills related to artificial intelligence and cybersecurity matters. Elsewhere, the American Enterprise Institute takes a look at the Federal Reserve’s efforts to establish a digital U.S. dollar, while the U.S. Patent and Trademark Office will hold its most recent quarterly meeting of the Patent Public Advisory Committee this Thursday. 

The Patent Infringer Lobby has ramped up banging the drum about “patent quality.” They dedicated a week-long campaign to questioning “patent quality,” which its constituents regard as a huge problem. Advocates have taken advantage of the vacuum left after U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu left the building. Anti-patent advocates are exploiting the new dynamic of Senator Patrick Leahy, coauthor of the America Invents Act (AIA), who now chairs the Senate Intellectual Property Subcommittee. Leahy recently did the Infringer Lobby the favor of holding a hearing on this subject.

Earlier today, the Senate Judiciary Committee held an Executive Business Meeting in which the Committee discussed and favorably reported four bills aimed at reducing prescription drug prices for consumers and curbing perceived abuses of the patent system by brand pharmaceutical companies. The bills would do so by increasing the Federal Trade Commission’s (FTC’s) authority to initiate enforcement actions against drug companies. Senator Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, opened the meeting with an explanation of the need for the bills. He said that nearly 40% of U.S. patients struggle to pay for medication. The world’s best-selling drug, Humira, brought in $16 billion in sales in 2019 and Humira manufacturer, AbbVie, has obtained 130 patents on the drug, with 90% filed after Food and Drug Administration (FDA) approval.