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Posts in Capitol Hill

Thoughts on Tiffany Cunningham’s Confirmation to the CAFC

Tiffany Cunningham was confirmed to the U.S. Court of Appeals for the Federal Circuit earlier this week, making her—incredibly—the intellectual property court’s first Black judge. Cunningham has been a patent litigation partner at Perkins Coie LLP in Chicago, Illinois since 2014, and prior to that worked in the Chicago office of Kirkland & Ellis LLP. She will replace Judge Evan J. Wallach, who announced in March that he would retire from active service and assume senior status as of May 31, 2021, after 10 years of service with the court. Below are some thoughts from members of the IP community, and senators who voted for her, on what Cunningham’s appointment might mean for the CAFC long term.

This Week in Washington IP: Senate Set to Confirm Cunningham; Restoring American Leadership in Patent Law; and Supporting Cybersecurity by Stopping Ransomware

This week in Washington IP news, the U.S. Senate will vote on Tiffany Cunningham’s confirmation to the Federal Circuit, replacing Judge Evan Wallach; and a pair of committees in the House of Representatives, as well as the Senate Energy Committee, explore avenues that federal lawmakers have to stop the scourge of cyberattacks and ransomware impacting our nation’s infrastructure. The House Science Committee will also hold a hearing to discuss wireless spectrum needs for U.S. earth and space science research. Elsewhere, The Heritage Foundation hosts an event on restoring American leadership in patent law with Former USPTO Director Andrei Iancu and Retired Federal Circuit Chief Judge Paul Michel, and The Brookings Institution focuses on possible frameworks to replace the invalidated EU-U.S. Privacy Shield for cross-border data flows.

On Tiffany Cunningham’s Appointment to the CAFC: An Impeccable Candidate and a Rallying Call for More Diversity in IP

On March 30, 2021, President Biden tapped Tiffany Cunningham to be the first African American to sit on the Federal Circuit. After a straightforward and speedy hearing, the Senate Judiciary Committee later advanced Cunningham’s nomination with a 16-6 vote. With her confirmation now imminent, Cunningham is poised to become the first African American, and the first African American woman, to join the Federal Circuit bench. Now that she has reached this historic milestone, this article reflects on the significance and impact of Cunningham’s nomination.

USPTO Delivers on Senators’ Request for Patent Eligibility Jurisprudence Study

In March of this year, a bipartisan group of senators asked Drew Hirshfeld, who is Performing the functions and duties of the Director of the U.S. Patent and Trademark Office (USPTO), to “publish a request for information on the current state of patent eligibility jurisprudence in the United States, evaluate the responses,” and provide the senators with a detailed summary of the findings in order to assist them as they consider appropriate legislative action. The letter gave a deadline of March 5, 2022 to submit a report on the topic. Now, a Federal Register Notice (FRN) scheduled to be published July 9 is requesting answers and input from stakeholders to 13 questions/topics to assist in that effort, according to a publicly posted draft of the FRN.

Will Trump Class Actions Against Social Media Platforms Revive Section 230 Debate?

Former President Donald J. Trump announced today that he is suing Facebook, Twitter and Google/YouTube in separate class action suits, claiming, among other allegations, that the platforms have “increasingly engaged in impermissible censorship resulting from threatened legislative action, a misguided reliance upon Section 230 of the Communications Act, 47 U.S.C. § 230, and willful participation in joint activity with federal actors.”… All three complaints take aim at Section 230 of the Communications Decency Act of 1996, dubbing it “[l]egislation passed twenty-five (25) years ago intended to protect minors from the transmission of obscene materials on the Internet, and to promote the growth and development of social media companies” that has outgrown its original intent and enabled each of the companies to become behemoths who censor content of their choosing.

A Recent Senate IP Subcommittee Hearing Demonstrates the Danger of Patent Fallacies

During the Senate Judiciary’s Subcommittee on Intellectual Property hearing, titled Protecting Real Innovations by Improving Patent Quality, held on June 22,  Jorge Contreras, Presidential Scholar and Professor of Law at the S.J. Quinney College of Law of the University of Utah, testified under oath that patents are effectively the same thing as products, and seemed to suggest that executive fraud unrelated to patents must make the patents fraudulent too. This, of course, is a fallacy. It shows a fundamental and deep misunderstanding of what patents are and how they work, and completely misrepresents law and logic. If taken seriously, Contreras’ testimony would destroy the value of virtually every patent portfolio and further chill investment in new technologies. It is an alarming position coming from a patent lawyer and credentialed law school professor who claims he is “intimately familiar with the topic of today’s hearings.”

‘Decoupling’ with China is Not the Answer

We’ve all seen him when driving by the strip mall. Trying to focus on the traffic, our eyes are diverted by “Tube Man,” a 10-foot tall hollow, collapsible stick figure with a fan at the bottom, adjusted so that the body repeatedly folds and then jumps upright, with arms whipping around in a constant frenzy, trying to grab our attention. And that’s the point. Tube Man accomplishes nothing except to demand that we look at what he’s doing…. And that, in my view, describes very well the recent rush of legislative attempts to punish China. That is not to say that China is our best friend. We are in serious competition, and it’s obvious that our leading position in some critical technologies has been targeted. That “giant sucking sound” you hear in the direction of China may be some cutting-edge secrets being displaced. We should be deeply concerned. We need a thoughtful, long-term strategy to respond.

This Week in Washington IP: Cryptocurrencies Setting Millennials on FIRE, Increasing R&D for Fire Science Innovation, and Debating the CLEAN Energy Act

This week Washington IP news, the Senate remains quiet on Capitol Hill but several committee hearings in the House of Representatives will explore the state of federally-funded wildland fire science, millennials turning to cryptocurrency investments for gaining financial independence, and legislative efforts to reduce emissions in the energy industry as well as securing U.S. communication networks. Elsewhere, the Information Technology & Innovation Foundation explores manufacturing priorities under the Biden Administration and a new framework for international antitrust regulation at the World Trade Organization, while Hudson Institute hosts an event looking at the overlap between antitrust and intellectual property issues.

Senate IP Subcommittee Mulls Ways to Improve Patent Quality (Again)

The Senate Judiciary Committee’s Subcommittee on Intellectual Property on Tuesday heard from four witnesses on the topic of “Protecting Real Innovations by Improving Patent Quality.” The topic has been addressed by the Senate IP Subcommittee before, and long-debated in patent circles generally. Under the leadership of its new Chairman, Senator Patrick Leahy (D-VT), the Subcommittee now seems to be revisiting the conversation and looking for practical fixes.

Reintroduced International Cybercrime Prevention Act Would Create New Cybercrime Violations, Increase Forfeiture and Injunctive Relief

On June 17, a bipartisan coalition of U.S. Senators, including Thom Tillis (R-NC), Sheldon Whitehouse (D-RI), Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) reintroduced the International Cybercrime Prevention Act for consideration by the upper house of Congress. If passed, the bill would enact provisions giving additional power to law enforcement for seizing devices used for cyber attacks as well as create new criminal violations for individuals who knowingly engage in cyber attacks on critical national infrastructure.

This Week in Washington IP: The Role of Patents in Innovation Policy, Final Public Roundtable on the Trademark Modernization Act, and Vetting CAFC Nominee Cunningham

This week in Washington IP news, the Senate Antitrust Committee looks at anti-competition issues in the smart home electronics industry, while the full Senate Judiciary Committee meets later in the week to discuss the nomination of Tiffany Cunningham to join the Federal Circuit bench. In the House of Representatives, committee hearings will focus on incorporating central bank digital currencies into the nation’s financial system, ways to improve small business prospects through improved broadband infrastructure and the future role of the Federal Aviation Administration in the commercial spaceflight sector. Elsewhere, Hudson Institute hosts an event on patents and innovation policy moderated by former USPTO Director Andrei Iancu, and the USPTO celebrates the 75th anniversary of the Lanham Act’s passage, which codified trademark law into federal statute. 

Biden Nominee Tiffany Cunningham Tackles Tillis’ Questions on IP Issues at the CAFC

President Joe Biden’s nominee for the U.S. Court of Appeals for the Federal Circuit (CAFC), Tiffany Cunningham, yesterday submitted written responses to a series of questions for the record (QFRs) presented by Senator Thom Tillis (R-NC), explaining her view on hot button issues like judicial activism, patent eligibility jurisprudence, the explosion of patent cases in the Western District of Texas, and forum shopping. Cunningham was announced as Biden’s nominee to the top IP court in March. She would replace Judge Evan J. Wallach, who announced earlier that month that he would retire from active service and assume senior status as of May 31, 2021.

EU Offers Alternative to COVID-19 IP Waiver That Supports Innovation and Addresses Supply Chain Problems

On June 4, the European Commission submitted to the World Trade Organization (WTO) its proposal for improving access to COVID-19 vaccines and treatments in countries suffering from vaccine shortages. The plan was submitted as an alternative to other proposals that would eliminate international patent rights for COVID-19 vaccines and treatments under the premise that such action would improve vaccine access in poorer countries. While the EU alternative contemplates the possible use of compulsory licensing, it addresses supply chain issues that will help to inoculate the entire globe against COVID-19 much more quickly than any patent waiver could ever hope to accomplish.

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

This 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.

Biden is Missing an Opportunity at the USPTO

Intellectual property (IP) made modern vaccines possible. It took billions of dollars in private and public investments in research and development to be able to create, in record time, multiple viable vaccines to fight the COVID-19 pandemic. The entire world should be celebrating the innovators that continue to push forward with new solutions to problems we will face in the future. This pandemic will end, but there will be another. We should be eternally grateful to have companies like Pfizer, Moderna and Johnson & Johnson that have the capability to create and manufacture vaccines at large scale…. It has been over four months since President Biden’s inauguration. As of yet there has not been a nomination for the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO). In addition to running the USPTO, the Director is responsible for advising the President on intellectual property issues. I believe that President Biden would have benefitted from an experienced voice knowledgeable about the dangers of supporting the erosion of property rights during the discussions on whether to support India and South Africa’s proposal to the World Trade Organization to waive IP protections under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).