As first reported by Bartholomew Sullivan of The Commercial Appeal, last week, on October 22, 2009, thirty-four members of Congress wrote a letter to Secretary of State Hillary Clinton urging her to steadfastly support strong intellectual property rights and not to given in to international demands that would weaken intellectual property rights, particularly patent rights. The concern expressed by these members of Congress centers around negotiations attempting to obtain an international agreement under the United Nations Framework Convention on Climate Change (UNFCCCC). This letter references a 432-0 vote in the United States House of Representatives on June 10, 2009, relative to an amendment to the Foreign Relations Authorization Bill, which stated that the United States “should prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements as of the date of the enactment of this Act for the protection of intellectual property rights related to energy or environmental technology” in order to “protect American jobs, spur economic growth, and promote a ‘Green Economy.'”
A press release issued earlier today by the Pharmaceutical Care Management Association (PCMA) explained that a new article published in the New England Journal of Medicine (NEJM) urges Congress and the White House to revisit pending biogenerics legislation that would grant biotech companies an a 12-year exclusivity period for biologics. The press release explains that the experts, who are Harvard researchers and unidentified patent experts are adding “to an emerging consensus, including the Federal Trade Commission, which has concluded that 12 years of market exclusivity for biologics is unnecessary.” I suppose anyone can say anything in a press release. I am still troubled by the arrogance on display by PCMA though. Either they do not know what a “consensus” is, or they are simply intentionally misrepresenting the facts in order to further their own agenda. In either case it is appalling that the discourse relating to patents and exclusive rights has devolved to the point where the truth no longer matters and the masses are mislead by things that simply are not true.
If you have not already read the letter from Commerce Secretary Gary Locke to Senator Patrick Leahy (Chair of the Senate Judiciary Committee) and Senator Jeff Sessions (Ranking Republican Member), you absolutely need to read it to comprehend the massive changes the Obama Administration is supporting with respect to patent reform. It would be difficult to over exaggerate the magnitude of the changes being supported by the Obama Administration. Simply put, if the Obama Administration gets its way US patent laws would be completely re-written and substantively changed to a greater extent than at any time since 1790. In fact, if the Obama supported patent reforms become enacted into law it would probably be much easier to simply pass legislation withdrawing all US patent laws and putting in its place the patent laws presently in existence in the European Union. If you do not believe a European style patent system is in the best interest of the United States then you had better step up to the plate, because the stars seem to be aligning and before you know it there may not be any remaining US patent laws. The steaks are high and it seems as if the once hopelessly derailed patent reform legislation is back with a vengeance, like a resurrected Jason a la Friday the 13th.
There has been something brewing for at least a couple weeks now on the patent reform agenda, and I have been trying to make sense of it all. I am not sure I have my head wrapped around it yet, but the Wall Street Journal (via Dow Jones Newswire) is reporting that President Barack Obama is placing his support behind major changes to the patent laws and reopening the patent reform debate. For some time now I have been writing that patent reform was dead and would not come back before the end of 2009, and that if it did not come back it would be difficult to do anything during 2010 due to it being an election year. Patent reform is not susceptible to party politics, but there are major industries and large donors who are on both sides of the debate, which will make it exceptionally difficult for many Senators to cast a vote one way or another. For that reason I do not suspect patent reform to be on the table in 2010 with what will be a very heated election cycle where every supporter and every dollar will matter. I also did not believe patent reform would come back this fall because the health care debate was raging and splitting the country and Congress.
On Friday, October 2, 2009. U.S. Commerce Secretary Gary Locke appointed Sharon Barner to the post of deputy director of the U.S. Patent and Trademark Office (USPTO). Milwaukee Journal Sentinel reporter John Schmid reported yesterday that in a telephone interview with Barner she explained that she is a long time associate of President Barack Obama, knows him personally and has had ties to him throughout much of his political career. According to Schmid, Barner helped Obama raise funds for an Illinois state senate race; worked on a voter registration effort; and had him speak several times at symposiums that she organized. Schmid also reports that Barner will not be relocating to either Virginia or Washington, DC, but instead will remain in Chicago and somehow fulfill her responsibilities as Deputy Director of the USPTO via telecommuting. Unless the Patent Office is going to open up a regional branch office in Chicago I fail to understand how the Deputy Director can be Deputy Director from afar. The travel schedules of former Directors Rogan and Dudas raised many eyebrows, but at least they had some presence on campus at the Patent Office.
I wish I had some inside information to pass along, but I do not. All I can seem to come up with is unsubstantiated rumor and innuendo, but the report the other day from Patently-O that Duke Law Professor Arti Rai is heading to the Patent Office to fill a long vacant policy setting position has too much of a ring of truth to completely ignore. There have long been rumors associated with Professor Rai given that she is a long-time friend of President Barack Obama, both having been in the same Harvard Law School class. What we do know is that Rai was a member of the Obama transition team, and was rumored to be on the short list for Undersecretary of Commerce for Intellectual Property, a position that also carries the title and responsibilities of Director of the Patent and Trademark Office. As practically everyone in the patent bar that came in contact with Professor Rai was kissing her ring in anticipation that she would become the new PTO Director, I heard an unsubstantiated rumor that she had been offered the position and declined. I want to make as clear as possible that I am writing about rumors, and unsubstantiated ones at that in order to distinguish from hard facts and inside information so that readers understand that this may all be much ado about nothing. Having said that, as well respected in academic circles as Professor Rai is, it would be an enormous mistake for her to be given a policy setting position within the USPTO. So allow me for a moment to buy into the rumors and make my case.
Earlier today James Love and James Glassman published what can only be described as an intellectually dishonest op-ed piece on RollCall.com. The two James either simply do not understand patent law, the biologics legislation they detest or have an agenda that requires lying and obscuring the truth using scare tactics and falsehoods. I don’t really know whether they are as clueless as their op-ed makes them appear, of if this is an orchestrated effort to persuade public opinion using obviously incorrect conclusions that are thrown about as if they were objective fact. To be perfectly honest, I couldn’t care less whether they are malicious, misinformed or just stupid. What I do care about is that their opinions are completely and utterly wrong, the supposed facts they rely on are false and those of us who understand patent law and this particular piece of legislation must do whatever is necessary to prevent to commandeering of patent policy to achieve whatever ill-conceived social agenda they seek to promote. The cause du jour cannot and must not lead us to make bad innovation policy that will unravel the Constitutional mandate to foster innovation.
On Thursday morning, August 13, 2009, CNBC aired a segment titled Fixing America’s Health Care System on Squawk Box, which is CNBC’s longest running program. Appearing on the program were Dr. Scott Gottlieb, who is a former FDA deputy commissioner, Tommy Thompson, former Health & Human Services Secretary and Wisconsin Governor and Jim Greenwood, a former Republican Congressman who is currently CEO of the Biotechnology Industry Organization (BIO). Despite the tone of the questioning, the segment is well worth watching and will no doubt dispel the myths and lack of understanding by open-minded individuals who question why the biotechnology industry wanted 12 to 14 years of exclusivity for biologics, when the FTC said zero years of exclusivity would be sufficient, President Obama wanted no more than 7 years of exclusivity and Congress opted for 12 years of protection. Co-anchor Joe Kernan started off the questioning by saying: “How did you get 12 years? Why exclude biotechnology from the cost pressures that everyone else is going to have to live under?” But I guess that type of hostility is to be expected when an NBC “news” organization gets three Republicans in the room.
The Senate Judiciary Committee has announced that the confirmation hearing for David Kappos, who is President Barack Obama’s nominee to be Undersecretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office, will be held on Wednesday, July 29, 2009 at 10:00 am Eastern Time in the in Room 226 of the Senate Dirksen Office Building. I had been predicting that the Kappos hearing would be pushed off, until at least after the August recess, given that Judge Sonia Sotomayor has still not has not been confirmed in the Senate, Cap and Trade legislation remains pending and the Obama health care reform initiative is taking up enormous amounts of time, and has turned extremely contentious. It is hard to exactly know what the scheduling of the Kappos hearing before the August Congressional recess means, at least in any behind the scenes or reading of the tea leaves sense.
UPDATED: Tuesday, July 21, 2009 at 6:59pm Pacific Time
The last presentation at the NAPP Annual Conference is presently ongoing, with William Smith of Woodcock Washburn giving a presentation regarding hot topics before the Board of Patent Appeals and Interferences. Smith is a former member of the Board while at the USPTO. His presentation is a good one, and sobering all at the same time. He mentioned my interview with Acting Patent Commissioner Peggy Focarino, and noted that the encouragement of allowances that Commissioner Focarino talked about in my interview is being seen by his firm and evidenced by what he called more “lets make a deal” phone calls from patent examiners who are presumably being told to find ways to issue patents. This coincides with what my firm has seen, and what I have heard from others. Sobering about his presentation so far though is that Smith said he fears that the budget problems facing the Office could cause the PTO to limp through the remainder of fiscal year 2009, and perhaps even limp into fiscal year 2010. He suggested that PTO fiscal year 2010 budget is likely going to be difficult to estimate given current economic conditions, and it is even possible that hiring may not restart in October as had been hoped by many of us. He then suggested there is a chance that even if Congress passes and President Obama authorizes the borrowing from the Trademark Office, the Patent Office may still have to struggle to keep costs down through the end of fiscal year 2009, which will end on September 30, 2009. These budget concerns were raised in a high profile way in a Wall Street Journal article titled Backlog, Budget Woes Await Patent Chief, which appeared in the paper earlier today. I was quoted in the article as being cautiously optimistic of the Kappos nomination, but hoping that he does not take positions only friendly to the high-tech sector.