Posts Tagged: "Senator Patrick Leahy"

Senators Leahy and Tillis have proposed another patent law amendment for the Endless Frontiers Act (SA 2060). No defense or damages limitation has ever turned on the niceties of recordation of ownership at the USPTO. This would be a sea change in patent law. Something so radical at least should rise or fall based on thorough and thoughtful legislative debate, investigation and committee work, including testimony by experts in real estate law and patent practice.

The full U.S. Senate is currently considering passing S. 1260, the Endless Frontier Act, a bill that would establish a Directorate for Technology and Innovation within the National Science Foundation (NSF) that would work to establish U.S. dominance in crucial areas of basic research including artificial intelligence, high-performance computing and advanced manufacturing. The bill, which represents a bipartisan effort to address China’s ambitions to become a globally dominant technological power, includes a pair of amendments from Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) that would impact U.S. patent law by requiring foreign entities to register ownership changes to ensure the availability of infringement remedies, and by increasing the scope of ex parte reexamination to adjudicate whether patent claims are unenforceable for inequitable conduct. But according to small business and independent inventor advocacy group US Inventor, these amendments would negatively impact small inventors.

In celebration of last month’s World IP Day, Senate Judiciary Committee Intellectual Property Subcommittee Chairman Patrick Leahy expressed his support for a determined effort to encourage more individuals and small companies across this country to invent new technologies and products. He also noted the need for the U.S. patent system to incentivize this effort. The Alliance of U.S. Startups and Inventors for Jobs (USIJ) strongly supports Chairman Leahy’s important objective of empowering startups and inventors, and we frankly think it has been underappreciated for many years…. However, we are concerned with one point raised by Senator Leahy without providing much detail – that the prior Administration took “steps to undermine the Leahy-Smith Act.”

On Sunday, February 14, U.S. Senate Democratic Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, announced the Subcommittees and Subcommittee Chairs of the Senate Judiciary Committee for the 117th Congress. Many in the IP universe had hoped Senator Chris Coons (D-DE), the Ranking Member of the Senate IP Subcommittee for the 116th Congress, would be appointed the IP Subcommittee Chair, considering his strong support for various IP reforms along with the previous IP Subcommittee Chair, Thom Tillis (R-NC). Tillis will serve as Ranking Member of the Subcommittee this Congress, but Coons was not selected to serve as Chair.

Sen. Harris followed up by asking whether algorithms were mathematical representations of laws of nature. “You’re getting right to the heart of the issue,” Iancu said. What Iancu said after that should be a major breath of fresh air to inventors and patent owners frustrated by Section 101 validity issues in the wake of Alice and Mayo: “This is one place where I believe courts have gone off the initial intent. There are human-made algorithms, human-made algorithms that are the result of human ingenuity that are not set from time immemorial and that are not absolutes, they depend on human choices. Those are very different from E=mc2 and they are very different from the Pythagorean theorem, for example.”

Earlier today the United States Court of Appeals for the Federal Circuit issued a major decision interpreting provisions of the America Invents Act (AIA), specifically the AIA on-sale bar provisions. In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the Federal Circuit panel of Judges Dyk, Mayer and O’Malley determined: “after the AIA, if the existence of the sale is…

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.

Secretary Burwell and Director Collins are facing formidable pressure to reinterpret the Bayh-Dole Act for the compulsory licensing of costly drugs arising from federally supported research. And the pressure just increased another notch. On March 28, Senators Bernie Sanders, Elizabeth Warren, Al Franken, Patrick Leahy, Sheldon Whitehouse and Amy Klobuchar joined the leaders of the House Democratic Task Force on Prescription Drug Pricing urging Burwell and Collins to hold a meeting “to allow the public to engage in a dialogue with the Department of Health and Human Services and NIH in order to better understand its position on the use of march-in rights to address excessive prices.” If NIH joins in pursuing the swamp gas illusion that Bayh-Dole was intended to regulate drug pricing, we’ll quickly learn that it’s a lot easier getting into this morass than getting back out.

On the Republican side, front-runner Donald Trump, whose inability to be stopped by his own rhetoric has proven to be a hallmark of his campaign, has said himself that he is “changing” on this issue, at least where skilled talent is concerned. Trump has been on both sides of the H-1B visa issue, which makes it difficult to know what he really believes and what policy might become during a Trump Administration.

Use of this phrase strikes me as indefensible because by its very nature it implies picking winners and losers after the Patent Office has already issued a patent and taken money from the inventor. Or worse, it reinforces the two-class patent system that we increasingly see today, between those that “have” the resources to attack or defend patents and the “have nots” (everyone else). Once a patent issues it is a private property right. Period. By definition a patent is legitimate because it exists!

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.

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.

Chen, an Obama appointee, was confirmed only several years ago by a vote of 97-0. Born in 1968 he is 47 years old, meaning he could easily serve on the Court throughout the next generation, in modern times an important consideration for a Presidential nomination to the High Court. Chen also comes from the Federal Circuit, which is anything but politically controversial, primarily responsible for handling patent appeals. Chen would also become the first Asian American to serve on the Supreme Court, another potentially important consideration for President Obama, who has shown throughout his term in Office that he likes breaking glass ceilings with appointments and nominations. Thus, Chen would have virtually all the same upside as would Srinavasan without any of the baggage that would make confirmation difficult, if not impossible.

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?

At the end of her speech Pallante mentioned that she had just received a letter from the Senate Judiciary Committee, specifically sent by Senator Chuck Grassley (R-IA), who Chairs the Committee, and Ranking Member Senator Patrick Leahy (D-VT). The letter from Grassley and Leahy asked the Copyright Office to undertake a study and to report back on a number of software copyright issues. Pallante read a portion of the letter received from the Senate Judiciary Committee, which said: “As software plays an ever increasing role in defining consumer interactions with devices and products, many questions are being asked about how consumers can lawfully use products that rely on software to function.” She then remarked that this inquiry goes away from copyrights merely protecting expressive content, and further pointed out that the Senate is asking about works that are protected by copyright but still functional.