Posts in Capitol Hill

On November 1, Representative Jim Jordan (R-OH) sent letters to several federal agency heads, including Kathi Vidal, Director of the U.S. Patent and Trademark Office (USPTO), asking those officials what their agencies had done to respond to the U.S. Supreme Court’s mandate in West Virginia v. Environmental Protection Agency decided this June. While Jordan’s letter is clearly responding to political developments during the Biden Administration, West Virginia has garnered interest among some patent industry stakeholders responding to recent USPTO rulemaking surrounding subject matter eligibility under 35 U.S.C. § 101.

This week in Washington IP news, both house of Congress remain quiet during regularly scheduled work periods. Elsewhere, the Hudson Institute explores the growing right-to-repair movement and potential conflicts with federal policy on intellectual property protections. The Center for Strategic & International Studies explores the first three-year strategic plan for the Cybersecurity and Infrastructure Security Agency and how it should be implemented. Finally, the U.S. Patent and Trademark Office closes the week with a webinar discussing the agency’s recent request for comments (RFC) on initiatives to support robust and reliable patent rights being issued by the agency. 

During IPWatchdog’s Life Sciences Masters 2022 today, Retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit (CAFC) Paul Michel said a lot could be fixed by the CAFC itself with respect to patent eligibility law if it would just go en banc more often. “By my recollection the Federal Circuit hasn’t gone en banc on a major patent case in a decade,” Michel said. “And yet, all CAFC judges are on record saying that 101 law is a total mess and needs to be fixed.” Michel was speaking on a panel moderated by Laura Smalley of program sponsor, Harris Beach, and including Mike Cottler of biosimilars company Alvotech and Tom Stoll of Genentech. The panelists were discussing the effect of U.S. patent eligibility law on the life sciences industry, including the potential impact of current efforts to reform patent eligibility law, such as Senator Thom Tillis’ (R-NC) Patent Eligibility Restoration Act. While Michel said he believes it’s ultimately Congress’ job to make the kind of policy judgments the Supreme Court and Federal Circuit have been making in this sphere, there is still a lot more the Federal Circuit could be doing to help the situation

This week in Washington IP news, both houses of Congress remain quiet during regularly scheduled work periods, but IPWatchdog debuts its new headquarters in Ashburn, VA with Life Science Masters 2022 on Monday and Tuesday. In Seoul, South Korea, the Information Technology & Innovation Foundation’s Global Trade and Innovation Policy Alliance hosts a two-day summit to focus on strengthening strategic ties in innovation economies among member countries. ITIF also hosts an event this week to explore the upcoming COP 27 climate change conference and how stronger innovation policies can lead foreign governments to meeting climate commitments established at this meeting. Elsewhere, the Center for Strategic & International Studies hosts a pair of events taking a look at cybersecurity efforts within the U.S. Department of Homeland Security, while the U.S. Patent and Trademark Office hosts a regular quarterly update of recent legislative and case law developments on intellectual property in China.

The U.S. Senate might be the world’s “greatest deliberative body.” But it’s certainly not the quickest. For over a year, senators have failed to review and approve an uncontroversial nominee for a position that most Americans have never heard of—but one that’s immensely important to our economy. In 2015, Congress passed the late Senator Orrin Hatch’s Trade Facilitation and Trade Enforcement Act, which created the position of Chief Innovation and Intellectual Property Negotiator. Senator Hatch believed that intellectual property (IP) was so important to the U.S. economy that it deserved the focus of an ambassador-rank official charged with guaranteeing strong IP standards are upheld and enforced with global trading partners. He was right: IP-intensive industries support more than 62 million American jobs, nearly half of all U.S. employment. 

Last week, the leadership of the Judiciary Committees and IP Subcommittees from both houses of Congress received letters seeking to address misinformation being presented by critics of the Patent Eligibility Restoration Act, a bill proposed by Senator Thom Tillis (R-NC) that would abrogate several U.S. Supreme Court rulings on patent eligibility under 35 U.S.C. § 101. Both the Council for Innovation Promotion (C4IP) and University of Akron Law Professor Emily Michiko Morris not only supported Congressional passage of Tillis’ patent eligibility bill but also pushed back on criticisms that the bill would enable biotech firms to patent genes as they exist in the human body.

Systemic-level studies and data regarding impact on investment and innovation, as detailed in Part II of this series, are not the only way to demonstrate the substantial harm that the current state of patent eligibility has inflicted on the U.S. innovation ecosystem. Other robust evidence shows that current Section 101 law has harmed innovation by removing the incentives to develop and commercialize particular inventions of public importance. As another form of harm, the vagueness and breadth of the Alice/Mayo framework have also enabled accused infringers to transmogrify Section 101 into a litigation weapon in inappropriate cases that has created unnecessary burdens and costs on innovators and the courts.

This week in Washington IP news, the United States Patent and Trademark Office (USPTO) is hosting events on blockchain and drafting provisional patent applications, while the Brookings Institution is hosting an event on the regulation of cryptocurrency markets. Also in the cyber world, three authors will make their case for a more holistic and aggressive U.S. approach to cyberspace strategy at The Heritage Foundation.

The International Center for Law and Economics (ICLE) released a white paper on Thursday arguing that Section 512 of Title 17 of the Copyright Act has been a failure, and it should be reevaluated and overhauled. Congress passed Section 512 as part of the Digital Millennium Copyright Act (DMCA), and authors Kristian Stout and Geoffrey Manne argue the federal courts have written out key provisions in the law. Stout and Manne write that Section 512 has succeeded in allowing online service providers (OSPs) such as social media companies to grow and thrive by providing a safe harbor provision as long as they take down infringement promptly. However, the authors argue that the law has failed to provide proper incentives and systems to prevent digital piracy

Patent eligibility law in the United States is in a state of disarray that has led to inconsistent case decisions, deep uncertainty in the innovative, investment and legal communities, and unpredictable outcomes in patent prosecution and litigation. These facts have been extensively documented in multiple sources, including: the statements of all 12 active judges of the nation’s only patent court, the U.S. Court of Appeals for the Federal Circuit (confirmed prior to October 2021); the findings and reports of the Executive branch across all recent Administrations; the bi-partisan conclusions of Congressional committees; a robust body of academic studies; and at least forty separate witness statements at the 2019 hearings on this issue before the Senate Committee on the Judiciary Subcommittee on IP, including statements from advocates that oppose Section 101 reforms.

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 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.

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 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.