“’There will always be more implementers than creators,’ [Andrei] Iancu said. But if U.S. patents can never enjoy quiet title and continue to ‘face death by 1,000 cuts,’ inventors will never be incentivized to dedicate time to the inherently risky prospect of innovating.”
IPWatchdog LIVE 2022 kicked off Sunday afternoon in Dallas with a Welcome to Texas featuring a Fireside Chat with IPWatchdog Founder and CEO Gene Quinn and U.S. Patent and Trademark Office (USPTO) Texas Regional Director, Hope Shimabuku, who told attendees that the Office is actively working, both internally and with Congress, to fix confusion around U.S. patent eligibility law following the Supreme Court’s denial of certiorari in American Axle & Manufacturing v. Neapco.
Shimabuku said the USPTO was very disappointed when the Court denied American Axle and revived its Section 101 Working Group to consider options. She also said that, in her personal opinion, Senator Thom Tillis’ (R-NC) recent Patent Eligibility Restoration Act has a good chance of getting through Congress. “There’s keen interest,” Shimabuku said.
Quinn also asked Shimabuku for an update on what the Office is doing to combat counterfeiting, particularly with respect to bad behavior from Chinese actors. Shimabuku said the topic is a priority for USPTO Director Kathi Vidal but that “it’s a really difficult situation.” While the USPTO has IP Attaches based in China to help IP owners navigate the system, it has become increasingly problematic for companies to let the Chinese government know that they’re being advised by anyone.
Since Vidal took over, Shimabuku said she has had weekly meetings with the Director and that Vidal “has been fantastic in laying down the direction” for the regional offices. When asked if claims and continuations practice is one of the Office’s priorities, Shimabuku said yes, as it is one of five initiatives under the rubric of “robust and reliable patents”, i.e. patent quality, which is a key focus for Vidal. In June of this year, a number of senators asked Vidal to address concerns over the anti-competitive impacts of so-called “patent thickets,” especially in the drug industry, primarily focusing on the role of continuation patents. They asked that Vidal issue a notice of proposed rulemaking on the subject, or a request for comments, by September 1, 2022; however, the Office has not yet published any such notice.
Shimabuku also noted that the Texas Regional Office has been slowly coming back online following its closure to the public during the pandemic and that there is “a good group” of examiners coming into work, rather than working remotely. The Office has also started holding in-person hearings again, and at least one person has come in every week to ask for help with their patent filings since reopening.
Iancu Receives Second Annual Paul Michel Award
Later in the evening, IPWatchdog Chief Operating Officer Renee Quinn presented Retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit, Paul Michel, to award the second annual Paul Michel Award to former USPTO Director Andrei Iancu. Michel, who chooses the recipient each year, joined by phone from Washington DC to praise Iancu for four key contributions to the patent community: 1) his patent eligibility guidance while with the USPTO, which has resulted in significantly lower rates of 101 rejections; 2) his efforts to integrate the work of the Patent Trial and Appeal Board with parallel litigation through the creation of the Precedential Opinion Panel; 3) his leadership on Diversity, Equity and Inclusion efforts while with the Office; and 4) his current work with the Center for Strategic & International Studies to focus policymakers on the role of patent law in foreign policy.
Iancu graciously accepted the award, thanking the judge and thanking IPWatchdog for its role in amplifying the voice of the inventor, which he said “is so needed” today. “There will always be more implementers than creators,” Iancu said. But if U.S. patents can never enjoy quiet title and continue to “face death by 1,000 cuts,” inventors will never be incentivized to dedicate time to the inherently risky prospect of innovating, he added.
Ultimately, Iancu said, policymakers, who are always going to be torn between various voices and perspectives, “should just be asking if the laws on balance are incentivizing inventors to invent. There is an inextricable link between innovation and IP rights; one simply does not exist without the other.”
Sunday also included a session on “The Global IP Landscape,” in which the Global Innovation Policy Center’s (GIPC’s) Patrick Kilbride lamented the U.S. decision to waive IP rights under the Trade-Related Aspects of Intellectual Property (TRIPs) Agreement and noted that the World Trade Organization (WTO) is set to extend that waiver to diagnostics. The signal it sends when it comes to innovation is “don’t make this investment,” Kilbride said. The WTO is set to extend the waiver to diagnostics and therapeutics next week.
IPWatchdog LIVE 2022 is being held at the Renaissance Dallas Richardson in Dallas, Texas from Sunday, September 11 – Tuesday, September 14.