This Week in Washington IP: Controversial Leahy Amendment Set to Pass as Part of U.S. Innovation and Competition Act; Where We Stand on the IEEE 2015 Business Review Letter; and March-In Rights Under Bayh-Dole

By IPWatchdog
June 7, 2021

https://depositphotos.com/12633480/stock-photo-washington-capitol-with-sky-and.htmlThis week in Washington IP news, the Senate is set to pass the U.S. Innovation and Competition Act, including a controversial amendment to the Endless Frontier Act on recordation of patent ownership; subcommittee hearings at the House of Representatives discuss the potential benefits to science and technology of a national “oceanshot” as well as ways that federal funding can be used to benefit regional tech hubs outside of traditional innovation centers. Among policy institutes, the Hudson Institute explores what the archiving of the 2020 update to the 2015 Business Review Letter to the IEEE means for antitrust enforcement of standards-essential patents, the Center for Strategic & International Studies looks at misunderstandings about march-in rights under Bayh-Dole related to the COVID-19 pandemic, and a book club at New America focuses on an anti-patent narrative translating the story of Robin Hood to the world of branded pharmaceuticals.

Monday, June 7

House Subcommittee on Environment

Defining a National ‘Oceanshot’: Accelerating Ocean and Great Lakes Science and Technology

At 11:00 AM on Monday, online video webinar.

The National Oceanic and Atmospheric Administration (NOAA) is responsible for advancing scientific research regarding oceans, waterways and the atmosphere, and in early June the agency announced that it had selected the University of Hawai’i to host the Cooperative Institute for Marine and Atmospheric Research, awarding $210 million to the educational institution which will host the NOAA program for at least five years. The witness panel for this hearing will include Craig McLean, Assistant Administrator for Oceanic and Atmospheric Research and Acting Chief Scientist, NOAA, U.S. Department of Commerce; Dr. Margaret Leinen, Vice Chancellor, Marine Sciences, Director, Scripps Institution of Oceanography; Dr. Michael P. Crosby, President & CEO, Mote Marine Laboratory; and Dr. Robert D. Ballard, President, Ocean Exploration Trust, Explorer-at-Large, National Geographic Society.

Hudson Institute 

The IEEE Business Review Letter: Where Do We Stand?

At 12:00 PM on Monday, online video webinar.

A 2015 business review letter sent from the U.S. Department of Justice (DoJ) to the Institute of Electrical and Electronics Engineers (IEEE) was often cited for the premise that U.S. antitrust regulators were increasingly taking aim at standard-essential patent (SEP) licensing practices surrounding the development of electronics standards by standards developing organizations (SDOs) like the IEEE. While that 2015 letter was updated by the DOJ last September because of concerns that this interpretation could harm competition and innovation, in recent months much has been made of an unannounced archiving of the 2020 update and the implications for a return to the possibility of stronger antitrust enforcement surrounding SEPs as indicated by the 2015 business review letter. This event will feature a discussion with a panel including Elisabeth Opie, International Technology Lawyer, Munich; Richard S. Taffet, Partner, Morgan Lewis; Georgios Effraimidis, Senior Manager, Qualcomm; Urška Petrov?i?, Senior Fellow, Hudson Institute; and moderated by Walter G. Copan, Ph.D., Former Under Secretary of Commerce for Standards and Technology, Director, NIST, and Senior Advisor and Co-founder, Renewing American Innovation Project, Center for Strategic & International Studies.

Tuesday, June 8

Leahy Amendment on Recordation Expected to Pass with U.S. Innovation and Competition Act

The U.S. Senate is expected to vote on the U.S. Innovation and Competition Act on Tuesday—a sweeping bill meant to counter China on multiple fronts. The Endless Frontier Act has been amended to the larger bill, and an amendment proposed by Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) to that bill is Amendment No. 2093, which would impose penalties on patent owners who fail to properly record ownership transfer. Robert Greenspoon explained a prior incarnation of the amendment thusly: “[It] essentially says that if the paperwork for an ownership transfer is not handled properly within a short 90-day time frame from the date of a transfer (i.e., if it is not ‘recorded’ with the USPTO) then every infringer that our judicial system has determined is the ‘worst of the worst’ will get away with it. As a penalty for nonrecordation, a jury’s finding of willfulness could never lead to enhancement of damages to punish that willfulness.” Inventor groups have spoken out against the amendment, as many feel it would disproportionately impact small companies and independent inventors.

Information Technology & Innovation Foundation

Can the Biden Administration Protect US Digital Interests in Europe With a New Strategy of “Realpolitik”?

At 10:00 AM on Tuesday, online video webinar.

The administration of President Joe Biden is expected to be much more pragmatic in international diplomatic relations than the America First stance taken by the Trump Administration, but increasing regulatory scrutiny of major American tech firms operating in Europe will pose a challenge during the upcoming G7 and NATO summits. This event exploring U.S.-EU digital trade relations and ways to promote U.S. business interests will feature a  keynote address by Frances G. Burwell, Distinguished Fellow, Atlantic Council. Following that address will be a discussion with a panel including Paul Hofheinz, President, Executive Director and Co-Founder, The Lisbon Council; Alina Polyakova, President and CEO, Center for European Policy Analysis; and moderated by Robert D. Atkinson, President, ITIF.

U.S. Patent and Trademark Office

Protecting and Enforcing Your Clients’ Intellectual Property Overseas: A Conversation With the USPTO’s IP Attachés

At 10:00 AM on Tuesday, online video webinar.

To help U.S. intellectual property owners protect their property rights internationally, where IP enforcement rules are often very different than here in the U.S., the IP Attaché Program at the USPTO employs a series of international diplomats working at foreign embassies to interface with local IP regimes to improve dialogue between U.S. IP owners and foreign countries. This workshop will focus on services offered by IP Attachés and concludes with a question-and-answer session for interested viewers.

Center for Strategic & International Studies

Innovation, the Bayh-Dole Act, and March-In Rights

At 1:30 PM on Tuesday, online video webinar.

The year 2020 was the 40th anniversary of Congress’ passage of the Bayh-Dole Act, an incredibly important and misunderstood piece of legislation that helped bridge the gap between federal funding of basic science research and commercialization of technologies spun out of university research labs, especially in the realm of new vaccines and medical treatments. While march-in rights under Bayh-Dole are available for technologies that are not being put on the market in any meaningful way, many healthcare price activists have advocated for the use of those rights as a price control on branded drugs that many consumers are already purchasing. This event features a keynote address on the impact of Bayh-Dole on society, especially through the lens of the COVID-19 pandemic, by Representative Ami Bera (D-CA), Co-Chair, Health Care Innovation Caucus, and Commissioner, CSIS Commission on Strengthening America’s Health Security. Following this address will be a discussion with a panel including Dr. Barbara Snyder, President, Association of American Universities; Gillian Fenton, Esq., CLP, President and Chair, Licensing Executives Society, and Special Counsel, Innovation and Government Collaborations, GlaxoSmithKline; Dr. Stephen Susalka, CEO, AUTM; Joseph Allen, Joseph Allen & Associates, and Former Principal Staffer for Passage of the Bayh-Dole Act with Sen. Birch Bayh (D-IN); and moderated by Dr. Walter G. Copan, Senior Advisor, Renewing American Innovation Project, CSIS, and Former Director, National Institute of Standards and Technology.

Wednesday, June 9

House Subcommittee on Research and Technology

Building Regional Innovation Economies

At 10:00 AM on Wednesday, online video webinar.

The Endless Frontier Act, although it has become the target of a number of controversial amendments while being debated on the floor of the Senate, would include funding earmarked for supporting the growth of regional tech hubs outside of traditional stalwarts like Silicon Valley and New York City. The witness panel for this hearing will include Dan Berglund, President and CEO, SSTI; Professor Erica R.H. Fuchs, Department of Engineering and Public Policy, Carnegie Mellon University; and Paula Nas, Director, Office of Economic Development, University of Michigan-Flint.

Senate Subcommittee on Economic Policy

Building A Stronger Financial System: Opportunities of a Central Bank Digital Currency

At 2:30 PM on Wednesday, online video webinar.

Although bitcoin and most altcoins are based on decentralized ledger technologies, posing an alternative to traditional institutional models in the financial sector, governments in China and Brazil have been considering the development and rollout of central bank digital currencies to facilitate smart contracts, programmable money and innovative business models supported by those technological advances. The witness panel for this hearing will include Dr. Neha Narula, Director, Digital Currency Initiative, MIT; Lev Menand, Academic Fellow and Lecturer in Law, Columbia Law School; the Honorable J. Christopher Giancarlo, Senior Counsel, Willkie Farr & Gallagher; Dr. Darrell Duffie, Adams Distinguished Professor of Management and Professor of Finance, Stanford University Graduate School of Business.

U.S. Patent and Trademark Office 

History’s Hand: Inventor’s Mind – Innovate Like Edison

At 3:00 PM on Wednesday, online video webinar.

The History’s Hand: Inventor’s Mind series at the USPTO features an exploration of innovation through time as explored by USPTO Historian Adam Bisno, looking at ways that famous inventors from years ago approached problem solving and how those solutions can inform modern day innovation. This installment of the series features as a speaker Paul Israel, Research Professor, Director and General Editor of the Thomas A. Edison Papers at Rutgers University.

New America 

Science Fiction/Real Policy Book Club: Autonomous by Annalee Newitz

At 6:00 PM on Wednesday, online video webinar.

Autonomous, the debut novel from science journalist Annalee Newitz, tells the fictional tale of a Jack, a female anti-patent scientist who makes her leaving stealing medicines and selling them to make a living in a modern adaptation of the Robin Hood folk tale. While the book almost certainly oversimplifies the realities of patent protections for branded pharmaceuticals, as well as the careful balance wrought between private innovation and public interest in generic drugs by frameworks under the Hatch-Waxman Act, the book does involve discussions on patent law as well as robot ethics, geopolitics and other timely themes. Speakers at this event will include Joey Eschrich, Editor and Manager, Center for Science and the Imagination, Arizona State University; and Tahir Amin, Co-Founder and Co-Executive Director, I-MAK.

Thursday, June 10

Information Technology & Innovation Foundation

Innovation Drag: The Impact of Chinese Economic and Trade Policies on Global Innovation

At 12:00 PM on Thursday, online video webinar.

Much has been debated about the negative impact of Chinese government subsidization and central planning of several important sectors, including telecommunications, semiconductors and biopharmaceuticals, on the ability of U.S. businesses to compete in international markets. A new research project released by ITIF in partnership with the Smith Richardson Foundation explores the little-researched negative impact that Chinese economic policies have on innovation economies across the world. This event will feature a discussion of this research and ways to counteract the harmful impacts of Chinese policies with a panel including Nigel Cory, Associate Director, Trade Policy, ITIF; Stephen Ezell, Vice President, Global Innovation Policy, ITIF; David M. Hart, Senior Fellow, ITIF; and moderated by Robert D. Atkinson, President, ITIF.

U.S. Patent and Trademark Office 

Design Webinar Series: Vehicles

At 1:00 PM on Thursday, online video webinar.

Although they can add a great deal of value to a business’s IP portfolio, design patents are often overlooked by business owners and entrepreneurs. This workshop will discuss the role of design patents, their benefits towards maximizing portfolio value and various topics related to design patents in vehicles, including nuances in protecting different types of vehicles and infringement challenges unique to design patents in that sector.

Friday, June 11

American Enterprise Institute

Strengthening US Cybersecurity in the Digital Age: A Conversation With Rep. John Katko (R-NY)

At 10:00 AM on Friday, online video webinar.

The U.S. federal government has taken action in recent years to address vulnerabilities in networks connected to government agencies, including a list of 75 recommendations for cyber deterrence in public and private networks from a recent report by the Cyberspace Solarium Commission. However, last month’s cyber attack on the Colonial Pipeline shows that, while countries like China and Russia are often the home base of malicious online actors, not every attack is state-sponsored and smaller hacking groups can often create unique problems when trying to surveill threats to the federal government’s networks. This event will feature a fireside chat between Shane Toews, Visiting Fellow, AEI, and Representative John Katko (R-NY), Member of Congress, U.S. House of Representatives. Following that chat will be a discussion with a panel including Ginny Badanes, Director, Strategic Projects, Cybersecurity and Democracy, Microsoft; Laura Bate, Cybersecurity Policy Fellow, New America; Klon Kitchen, Resident Fellow, AEI; and moderated by Shane Toews.

U.S. Patent and Trademark Office 

Trademarks and the Games: A Fireside Chat About Intellectual Property and the Olympics

At 3:00 PM on Friday, online video webinar.

The international athletic competition known as the Olympics involves some very unique challenges related to intellectual property protection and enforcement for the United States Olympic & Paralympic Committee (USOPC), the organization responsible for protecting America’s trademarks related to its participation in the Olympics. This event will feature a fireside chat between Dana Jozefczyk, Associate General Counsel for Intellectual Property, USOPC, and David Gooder, Commissioner for Trademarks, USPTO.

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  1. Pro Say June 7, 2021 4:42 pm

    “History’s Hand: Inventor’s Mind – Innovate Like Edison”

    Shockingly; including given what they’ve done to car axle and garage door opener patents; 1/4 to 1/2 of Edison’s patents would likely be invalidated by today’s CAFC.

    This, even though the Patent Office, District Courts, and SCOTUS (and even the PTAB Death Squad) would all correctly find them all easily patent eligible.

    While Congress stands by doing nothing to stop this rogue, law-unto-itself court.

    While China laughs their collective b.u.t.t.s off behind closed doors at what we are doing to our country.

    Mr. Edison, give thanks that you and your colleagues did your inventing back when America rightly celebrated and heralded her inventors.

    Way. Back. When.

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