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Posts in Capitol Hill

Jonathan Kanter Responses to Senate Provide Insight on Approach to Antitrust-IP Nexus

On July 20, President Joe Biden nominated Jonathan Kanter as Assistant Attorney General, a position that would place him at the head of the Antitrust Division at the Department of Justice. Kanter is an antitrust lawyer with over 20 years of experience. He is currently a partner at The Kanter Law Group LLP, which is a boutique antitrust law firm that advocates in favor of federal and state antitrust law enforcement. Prior to founding the The Kanter Law Group, he was Co-Chair of the antitrust practice at Paul, Weiss, Rifkind, Wharton, and Garrison LLP. Kanter also served as an attorney for the U.S. Federal Trade Commission’s Bureau of Competition. 

Judge Koh Responses on Antitrust-IP Intersection Promise More of the Same

On October 5, the Senate Judiciary Committee considered the nomination of Judge Lucy Koh, currently of the U.S. Federal District for the Northern District of California, to an appointment by President Biden to the United States Court of Appeals for the Ninth Circuit. After that hearing, several Senators submitted written questions, which Judge Koh responded to last week. There is no indication that Judge Koh’s nomination to the Ninth Circuit is in jeopardy, but it is noteworthy, and at least somewhat unusual, numerous Senators asked Judge Koh virtually the same questions regarding her decision in FTC v. Qualcomm. This level of overlapping interest by multiple members of the Senate Judiciary Committee, which IPWatchdog.com has learned was not coordinated and developed organically, is normally reserved for nominees to the Supreme Court, and even then, typically reserved to social or constitutional issues. So, even though it is believed Judge Koh can and will easily receive a favorable confirmation vote, the questions relating to the intersection of antitrust and patent law demonstrate a keen awareness and interest in these issues on the Senate Judiciary Committee.

Coons and Hirono Raise Concerns Over Pride in Patent Ownership Act Penalties

During a hearing of the Senate Judiciary Committee’s IP Subcommittee today, Senators Chris Coons (D-DE) and Mazie Hirono (D-HI) were the only senators present to question the Pride in Patent Ownership Act’s (PPOA’s) approach to penalizing patent owners who fail to record accurate ownership information within 90 days after the issuance date. The hearing included testimony from four witnesses on the topic of the PPOA introduced by Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) in September. Leahy explained in his introduction that the same fundamental principle of disclosure that underpins issuance of a patent should extend to patent ownership information. There is presently no requirement that ownership information be publicly available after a patent issues.

The Fintiv Deception: Leahy’s Legislative ‘Fix’ is Unwarranted in Light of Sotera Wireless

Several weeks ago, Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) introduced the Restoring America Invents Act, which would reverse the reforms of the Patent Trial and Appeal Board (PTAB) introduced by former U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu. The Senators claim that the legislation is necessary, among other reasons, to prevent undermining the Congressional intent in enacting the Leahy-Smith America Invents Act (AIA). According to Senator Leahy specifically, Director Iancu’s reforms politicized inter partes review (IPR) decisions by exercising discretion not to institute every IPR challenge filed by petitioners. “[Andrei Iancu] took actions that were designed to undermine the IPR process,” Leahy explained at a ceremony in September commemorating the 10th anniversary of the AIA. “[The Iancu reforms] hamstring the ability of the public to challenge poor-quality patents.”

This Week in Washington IP: Pride in Patent Ownership Hearing, Library of Congress Modernization Oversight and NASA’s Role in Low-Earth Orbit Space

This week in Washington IP events, the Senate IP Subcommittee convenes a hearing on Tuesday afternoon to debate the Pride in Patent Ownership Act, which would increase requirements on patent owners to disclose changes in patent ownership. NASA’s role in space, including the growing commercial space sector in low-Earth orbit, as well as in developing nuclear propulsion systems for deep space exploration, will be the focus of hearings by other Senate subcommittees. Modernization efforts at the Library of Congress and the U.S. Copyright Office will also be explored by the Senate Rules & Administration Committee. Elsewhere, the House Energy Subcommittee discusses opportunities for growing the domestic offshore wind industry, while ITIF closes the week with a look at President Biden’s executive order on promoting competition as part of the institute’s Dynamic Antitrust Discussion Series.

This Week in Washington IP: Ethics in Artificial Intelligence, Challenges with Carbon Removal and the USPTO Hosts the 2021 Hispanic Innovation and Entrepreneurship Program

This week in Washington IP news, Congress is largely quiet except for a hearing of the House Artificial Intelligence Task Force regarding ethical frameworks for developing artificial intelligence (AI) applications in various industries. Elsewhere in D.C., the Center for Data Innovation explores data driven approaches in addressing e-commerce counterfeits, The Brookings Institution hosts a conversation with Susteon’s Shantanu Agarwal on the challenges of carbon removal tech, and the U.S. Patent and Trademark Office kicks off the 2021 Hispanic Innovation and Entrepreneurship Program with multiple fireside chats and a panel on building networks and resources available to the community of Hispanic innovators.

Eagle Forum Event Participants Delve into Patent Eligibility ‘Goulash’

The extreme uncertainty that U.S. patent eligibility “validity goulash” jurisprudence has caused is wreaking havoc on inventors, especially those working on emerging technologies. It is also hindering patent owners’ ability to enforce their property rights, investment and licensing deal-making, and giving China advantages in global competitiveness. And it’s likely to get worse before it gets better. Those were takeaways from the Eagle Forum Education & Legal Defense Fund’s (EFELDF) “The Sorry State of Patentability: ‘Anything Under the Sun Made by Man’ No More” program in Washington, D.C. The September 29 event’s panelists considered patent eligibility from the Chakrabarty decision, which ruled a manmade living microorganism was patent-eligible, to dubious, damaging, judicially-created exceptions in such cases as Bilski, Mayo, Alice, Myriad and American Axle. The participants made painfully clear that the Alice-Mayo Framework doesn’t work and course correction is long overdue.

Senator Tillis Letter to Ambassador Tai: TRIPS Waiver (Copyright)

Dear Ambassador Tai: I write you again today for the fourth time about the Biden Administration’s waiver of international obligations under the Trade-Related Aspects of Intellectual Property Rights, or TRIPS agreement. Last week, several open-content organizations wrote to President Biden and argued that your proposed TRIPS Waiver should cover not just patents, but also copyright and other intellectual property rights. These organizations ask that you include copyright simply because it may apply to software, medicine labels, manuals, or “tools” associated with vaccines. The letter fails to address the importance of these protections to the economy, trade, and employment, the limitations placed on protections to ensure a balanced system, and how copyright protection facilitates the very innovation, creativity, and knowledge sharing that will make it possible for us to end this once in a lifetime pandemic. The inclusion of copyright is both unsubstantiated and unwarranted, and would impose devastating consequences on American creators, businesses and workers, while doing nothing to advance the objective of combatting COVID.

Kathi Vidal Floated as Possible USPTO Director Nominee

According to sources on the Hill, Kathi Vidal of Winston & Strawn is now high on the list of potential nominees for a new U.S. Patent and Trademark Office (USPTO Director). Several sources IPWatchdog has spoken with say the Biden Administration is openly floating her name, and she could be named as President Biden’s nominee for the USPTO post within a matter or weeks, or even days, if there is not substantial pushback.

This Week in Washington IP: Nomination Hearing for Judge Koh, Modernization Efforts at the Library of Congress, and Securing the U.S. Research Enterprise

This week in Washington IP events, in Congress, the House of Representatives holds a joint subcommittee hearing on shoring up cybersecurity in the U.S. research enterprise. Over in the Senate, the Judiciary Committee will consider the nomination of Judge Lucy Koh to sit on the Ninth Circuit, while the Rules Committee will convene for an oversight hearing on the modernization efforts underway at the Library of Congress, including the U.S. Copyright Office. Elsewhere, CSIS opens the week with a conversation with U.S. Trade Representative Katherine Tai, who has played an important role in shaping the United States’ stance on the proposed TRIPS waiver, and ITIF will explore a potential third update to the WTO’s International Trade Agreement to facilitate trade for a large number of new information technologies.

Stakeholders Speak: Leahy Bill to ‘Restore the AIA’ is Too Unbalanced to Pass

Last night, Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) released the text of the “Restoring America Invents Act”, which is meant to “support American innovation and reduce litigation,” according to the headline of the senators’ joint statement on the legislation. Many in the patent community, however, are not as optimistic. As reported previously, the bill would essentially end discretionary denial practice under precedential Patent Trial and Appeal Board (PTAB) cases such as Apple Inc. v. Fintiv, Inc. and limit denial to petitions where “the same or substantially the same prior art or arguments previously were presented to the Office,” among other changes. Here is what a handful of stakeholders who have had a chance to review the bill had to say so far.

The ‘Restoring America Invents Act’ Would Open the Floodgates for Patent Owner Harassment

The much discussed, but previously unreleased, Restoring America Invents Act has finally been made public. The bill was submitted by Senator Patrick Leahy (D-VT) in what he described late last week as an attempt to reverse the reforms of the Patent Trial and Appeal Board (PTAB) made by former USPTO Director Andrei Iancu. Leahy promised to take aim at discretionary denials of inter partes review (IPR) and post grant review (PGR) challenges, which he did, among many other things.

The United States Must Step Up Its Support for R&D, Education

History is often defined by its most important technology, giving us eras such as the Bronze Age and the Industrial Revolution. Given their importance, the modern era may go down as the Semiconductor Age. But unless the United States begins making needed investments in this and other key technologies, the future may wind up being the Age of China. It is hard to overstate the importance of semiconductors. The most sophisticated of these computer chips help to control computers, airplanes, and even modern weapons systems. Less sophisticated versions are still critical components of our daily lives and power automobiles, TVs and home appliances. From an economic and national security standpoint, controlling our supply of semiconductors should be essential. Yet, U.S. companies have spent decades outsourcing and consolidating the manufacturing of this essential technology to other countries.         

This Week in Washington IP: Name, Image, Likeness Rights for College Athletes; Regulating Cryptocurrencies; and Recapping the U.S.-EU Trade and Technology Council

This week in Washington IP events, the House Consumer Protection Subcommittee within the Energy & Commerce Committee will explore the rapidly expanding landscape for name, image, and likeness (NIL) rights for college athletes, while the Consumer Protection Subcommittee within the House Committee on Financial Services takes a look at technologies that are reshaping the U.S. banking system. The Senate Commerce Committee will also convene a hearing this week looking at consumer data privacy, especially the $1 billion earmarked in the $3.5 trillion House spending plan for the creation of a privacy bureau within the Federal Trade Commission. Elsewhere, The Brookings Institution hosts a discussion on regulating cryptocurrencies, the USPTO gives its second quarterly update on developments in Chinese IP Law, and the Center for Strategic & International Studies closes the week with a recap of developments during the inaugural U.S.-EU Trade and Technology Council scheduled for this week.

Looming Leahy Bill Would End Fintiv Practice at PTAB

IPWatchdog has obtained a draft summary of the “Restoring the America Invents Act” bill that Senate IP Subcommittee Chair, Senator Patrick Leahy (D-VT), is purportedly expected to introduce shortly. Several other outlets have reported that either Leahy himself or sources on the Hill confirmed such a bill is in the works and will address discretionary denial practice at the Patent Trial and Appeal Board (PTAB) under the PTAB’s precedential Apple Inc. v. Fintiv, Inc. decision, which sets out a list of factors that the Board will evaluate in deciding whether to discretionarily deny instituting a petition due to parallel district court litigation. The draft explains that the bill would require the USPTO to institute a proceeding if it meets the statutory standards, “with discretion to deny institution based on statutory considerations, so only one action goes forward at once.”