Posts in Capitol Hill

USPTO Publishes RFC on Continuation and Other Criticized Patent Practices

The United States Patent and Trademark Office (USPTO) announced today that it is seeking comment from the public on “proposed initiatives directed at bolstering the robustness and reliability of patents to incentivize and protect new and nonobvious inventions while facilitating the broader dissemination of public knowledge to promote innovation and competition.” During IPWatchdog’s LIVE event in Dallas, Texas, in September, USPTO Texas Regional Office Director Hope Shimabuku explained that issuing “robust and reliable patents”—which seems to have replaced the oft-maligned term, “patent quality,”—is a key focus for USPTO Director Kathi Vidal. The request for comment (RFC) tackles this problem from a number of angles, from fee-setting to terminal disclaimer and continuation practices, to improving prior art searches. The RFC stems in part from a July letter sent by the USPTO to the Food and Drug Administration (FDA) outlining the USPTO’s planned initiatives to help combat perceived links between patents and drug pricing problems.

This Week in Washington IP: Fighting the Chip Wars, FTC Regulation of Technology, and Using WIPO Center’s ADR Proceedings for SEP Disputes

This week in Washington IP news, both houses of Congress are silent as they enter scheduled work periods but the Hudson Institute and the American Enterprise Institute host conversations with Chris Miller, the author of Chip Wars: The Fight for the World’s Most Critical Technology. Another Hudson Institute event with Federal Trade Commission Commissioner Noah Phillips explores what the proper role is for the United States’ top antitrust enforcement agency in regulating the tech sector, while the U.S. Patent and Trademark Office hosts a presentation exploring alternative dispute resolution proceedings available at the WIPO Center for resolving disputes over standard essential patents.

Coons Announces He Will Co-Sponsor Tillis’ Patent Eligibility Restoration Act

On Wednesday night, during a launch event for the Council for Innovation Promotion (C4IP), Senator Chris Coons (D-DE) announced that he has come on as a co-sponsor of the Patent Eligibility Restoration Act of 2022. Senator Thom Tillis (R-NC) introduced the first draft of his bill in August, but had no co-sponsors at the time, which caused some to question the chances of the bill passing anytime soon. But tonight, Coons said he is happy to be a co-sponsor and both Coons and Tillis seemed optimistic about the prospects for intellectual property legislation in the next congress—no matter which of them ends up as Chair.

This Week in Washington IP: Securing U.S. Leadership in Emerging Compute Technologies, Managing the Risks of AI, and Incorporating Commercial Drones Into U.S. Airspace

This week in Washington IP news, the Senate Aviation Safety Subcommittee takes a look at incorporating unmanned aerial systems more fully into the U.S. national airspace, while the full Senate Commerce Committee explores how to maintain U.S. leadership in emerging compute technologies. Over in the House of Representatives, the House Science Committee focuses on the risks that must be managed as artificial intelligence (AI) systems become more highly developed. Elsewhere, the U.S. Patent and Trademark Office hosts the latest public meeting of the Patent Public Advisory Committee, and the American Enterprise Institute hosts a half-day event on Tuesday featuring multiple expert panels discussing topics at the intersection of technology and government.

Journalism Competition and Preservation Act Moves Out of Committee Despite Concerns

This morning, the full U.S. Senate Committee on the Judiciary convened an executive business meeting during which the committee advanced S. 673, the Journalism Competition and Preservation Act (JCPA). Though the bill was reported favorably with an amendment drawing support from the Republican members of the committee, others on the Senate Judiciary raised concerns that could presage further debate after it hits the floor of the Senate. The JCPA was first introduced into both houses of Congress last March, with Senators Amy Klobuchar (D-MN) and John Kennedy (R-LA) sponsoring the Senate version and Representatives David Cicilline (D-RI) and Ken Buck (R-NY) sponsoring the version introduced into the House of Representatives.

This Week in Washington IP: Legislative Measures on Right to Repair, Protecting American Innovation at the NCSC, and Senate Judiciary to Vote on the JCPA

This week in Washington IP news, the Senate Judiciary Committee holds a vote on the Journalism Competition and Preservation Act, which has faced some stiff opposition in recent weeks, while the Senate Select Committee on Intelligence takes a look at operations at the National Counterintelligence and Security Center designed to protect American innovation from being stolen by malicious actors. Over in the House of Representatives, the Subcommittee on Legislative and Budget Process explores potential avenues for protecting the right to repair in the digital age. Elsewhere, the U.S. Patent and Trademark Office (USPTO) hosts its second AI/ET Partnership Series meeting at its Silicon Valley regional office, and the Information Technology & Innovation Foundation focuses on the EU’s Digital Markets Act and its possible negative impacts on innovation.

Flawed Scheme to Lower Prescription Drug Prices Would Do the Opposite

The waning days of summer signal the approaching midterm election season. Amid inflation, recession and voter discontent, it’s understandable that a group of congress members are anxious to put points on the board with a price-control scheme that they wrongly believe will lower prescription drug prices. Though the goal is laudable, their approach would prove disastrous to American innovation while failing to deliver anything but higher prices for American consumers. In a recent letter to Department of Health and Human Services Secretary Xavier Becerra, 100 congressional lawmakers urged him to use his administrative authorities to leverage various intellectual property-related laws as a means of implementing price controls on patented drugs. But undermining intellectual property protection would put a deep chill on healthcare innovation, both at home and globally.

The Path Forward from American Axle: Discussing Legislative and Agency Rulemaking Fixes to Section 101

Last year, there was a great amount of confidence among those in intellectual property circles that the U.S. Supreme Court might finally provide some much-needed clarity to Section 101 subject matter patentability after a petition for writ of certiorari was filed in American Axle v. Neapco Holdings. On the second day of IPWatchdog LIVE 2022, panelists at the breakout session titled “Where Do We Go From Here on Patent Eligibility After American Axle” discussed what opportunities were left for fixing patent eligibility law after the Supreme Court denied cert in that case.

This Week in Washington IP: Broadband Provisions of the Farm Act, Regulating the Digital Asset Economy, and Preserving the Right to Repair

This week in Washington IP news, the House Agriculture Committee explores the rural broadband provisions of the Farm Act as Congress gets ready to reauthorize those programs in 2023, while the House Subcommittee on Underserved, Agricultural and Rural Business Development takes a look at how technical protection measures have undermined consumers’ right to repair vehicles and devices. Over in the Senate, the Armed Services Committee holds a nomination hearing to debate President Biden’s nominee for Chief of Space Operations for the Department of Defense, while the Senate Agriculture Committee reviews a proposed bill that would grant jurisdiction to the Commodity Futures Trading Commission to regulate the spot digital asset market. Elsewhere, both the Brookings Institution and the Information Technology & Innovation Foundation explore how democratic societies should approach technological adoption to ward off authoritarian regimes, while the U.S. Patent and Trademark Office holds a stakeholder meeting on business method patents.

Senator Tillis: Here’s the Answer to Section 101

In early August, Senator Tillis (R-NC) proposed legislation called the Patent Eligibility Restoration Act of 2022, (S. 4734). US Inventor wrote a response to this legislation showing how it will destroy already damaged patent protection for U.S. software inventors and startups. Included in this destruction will be some of the most important inventions to U.S. technological development, economic growth and national security, like artificial intelligence, security systems, block chain, quantum computing, and much more, including anything that could compete with Big Tech’s core technology.  This legislation is dangerously misguided. In a recent interview with IP Watchdog, Tillis was asked about some of the fatal concerns we identified in our response. Tillis brushed those concerns off by saying that he doesn’t want to hear complaints without solutions.  Fair enough. 

Perlmutter Reports to IP Subcommittee on CCB Performance, Deferred Exam Alternatives

The Senate Judiciary Committee’s Subcommittee on Intellectual Property yesterday held a hearing on “Oversight of the U.S. Copyright Office,” with Register of Copyrights and Director of the Copyright Office, Shira Perlmutter, as the sole witness. Perlmutter updated the senators on a number of projects in process, including how the Copyright Claims Board (CCB), a small copyright claims tribunal implemented as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act, is working so far.

Let’s Do Something About the Unauthorized Doctrine of Non-Statutory Judicially Created Obviousness-Type Double Patenting

In a June 20, 2022, article on IPWatchdog, I addressed a portion of the June 8, 2022, letter from Senators Leahy, Blumenthal, Klobuchar, Cornyn, Collins and Braun  to U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal requesting the USPTO to issue a notice of rulemaking or request for comments in the Federal Register by September 1, 2022, on curbing continuation practice as a means to address “patent thickets.”  As of the date of this article, the USPTO has not issued the notice. In this article, I, along with co-author Anthony Prosser, address the other issue raised in the Senators’ June 8 letter—whether elimination of terminal disclaimers that “allow” patents to issue that are “obvious variations of each other” would increase patent quality and whether patents that are tied by a terminal disclaimer should be considered an admission of obviousness and stand or fall together in litigation.

This Week in Washington IP: Oversight of the U.S. Copyright Office, Public/Private Collaboration for Quantum Computing Innovation, and Technology for Reducing Food Waste

This week in Washington IP news, the Senate IP Subcommittee hosts a hearing Wednesday afternoon to provide oversight of the U.S. Copyright Office, focusing on modernization efforts and technology updates. Elsewhere, the Center for Strategic & International Studies hosts events on encouraging public and private collaboration for improving developments in quantum computing technology, as well as technological developments in the agricultural and food production industries that can mitigate waste that those industries create.

Tillis Addresses Criticism of His Eligibility Reform Bill, Warns WD of TX Not to Backtrack on Standing Order

Senator Thom Tillis (R-NC) has been perhaps the most active and passionate Congress person when it comes to intellectual property (IP) rights, and patents specifically, in recent history. In early August, he released the first draft of the Patent Eligibility Restoration Act of 2022, which if enacted would abrogate the Supreme Court’s decisions in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S.Ct. 2107 (2013) and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012). He has also been closely involved with oversight of the U.S. Patent and Trademark Office (USPTO) on topics such as patent quality and has written numerous letters to the Biden Administration on issues including the waiver of IP obligations under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the theft of U.S. IP by Chinese companies, and more. While he seemed fairly exasperated by the end of his last attempt at eligibility reform in 2019, he explains below that the Supreme Court’s refusal to fix the problem by denying the American Axle case inspired him to revive his efforts.

This Week in Washington IP: Thinking Critically About Patent Reports, Innovation in the U.S. Air Force, and Addressing the Data Divide

This week in Washington IP news, former U.S. Patent and Trademark Office Director Andrei Iancu offers remarks at a Center for Strategic & International Studies event that provides a critical view of methodologies being employed by reports ranking the most innovative companies or countries. Elsewhere, the American Enterprise Institute looks at modernization efforts at the U.S. Air Force with Air Force Chief of Staff Gen. Charles Q. Brown Jr., and the Information Technology & Innovation Foundation’s Center for Data Innovation explores pathways towards closing the data divide that prevents equitable