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Posts in Capitol Hill

This Week in Washington IP: First Public Roundtable on Trademark Modernization Act, Licensing the First U.S. Patent and Exploring Biden’s Broadband Infrastructure Plan

This week in Washington IP news, both houses of Congress remain quiet as the Senate and the House of Representatives enter scheduled work periods. Among policy institutes, however, the Information Technology & Innovation Foundation explores the impacts of “deepfakes” and disinformation on democratic processes, and hosts its seventh Dynamic Antitrust event, which looks at how antitrust regulators can better incorporate the realities of innovation into enforcement activities. The Brookings Institution will look at the positive and negative aspects of President Biden’s recent $100 billion proposal to build out broadband infrastructure across the U.S. Finally, the U.S. Patent and Trademark Office will host its first public roundtable on the agency’s plans to implement the Trademark Modernization Act, and agency historian Adam Bisno will host a webinar looking at licensing activities surrounding the first issued U.S. patent.

Other Barks & Bites for Friday, May 28: China’s Drug Patent Linkage System Goes Into Effect Next Week; Tillis Asks Copyright Office to Conduct Examination, State Bill Studies; and New USPTO Code of Conduct Rules

This week in Other Barks & Bites: the USPTO promulgated a final rule aligning the agency’s code of conduct with the ABA’s Model Rules, as well as a notice of proposed rulemaking to allow high-capacity physical media submissions for certain patent applications; China’s drug patent linkage system, similar to the U.S. system enacted under the Hatch-Waxman Act, goes into effect next Tuesday; the EUIPO released a study showing that IP-intensive industries, although among the most harmed by the COVID-19 pandemic, are expected to bounce back quickly from economic shutdowns; the Second Circuit affirms a district court’s dismissal of copyright infringement claims involving a 2016 Super Bowl commercial aired by Pepsi; Senator Tillis sends letters to the Copyright Office asking Register Perlmutter to study state bills on compulsory copyright licenses as well as the feasibility of deferred examination for copyright registrations; and strong earnings for Nvidia, Dell and HP this week show that computer and GPU sales have not been negatively impacted by the global chip shortage.

Leahy-Tillis Amendments to Endless Frontier Act Opposed by Inventor Advocacy Group

The full U.S. Senate is currently considering passing S. 1260, the Endless Frontier Act, a bill that would establish a Directorate for Technology and Innovation within the National Science Foundation (NSF) that would work to establish U.S. dominance in crucial areas of basic research including artificial intelligence, high-performance computing and advanced manufacturing. The bill, which represents a bipartisan effort to address China’s ambitions to become a globally dominant technological power, includes a pair of amendments from Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) that would impact U.S. patent law by requiring foreign entities to register ownership changes to ensure the availability of infringement remedies, and by increasing the scope of ex parte reexamination to adjudicate whether patent claims are unenforceable for inequitable conduct. But according to small business and independent inventor advocacy group US Inventor, these amendments would negatively impact small inventors.

This Week in Washington IP: FY2022 Budget Request for the NIH, The Role of IP Rights in Developing COVID-19 Vaccines and the DOE’s Science and Energy Research Enterprise

This week in Washington IP news, labor subcommittees in both the House and the Senate will review President Joe Biden’s discretionary funding request for the National Institutes of Health during the 2022 fiscal year. Other hearings in the House of Representatives will explore the science and energy research enterprise in the U.S. Department of Energy and ways that the federal government can improve security in software supply chains following the SolarWinds data breach last year. Elsewhere, the Information Technology & Innovation Foundation looks at the role that intellectual property rights have played in supporting investments in R&D for developing COVID-19 treatments and vaccines, while both the Heritage Foundation and American Enterprise Institute explore what lies ahead in the coming months regarding reform of Section 230 immunities for online platforms.

Republican Senators Demand Answers from Biden on ‘Disastrous Decision’ to Support COVID IP Waiver

A group of 16 Republican senators sent a letter on Wednesday to U.S. Department of Commerce Secretary Gina Raimondo and U.S. Trade Representative (USTR) Katherine Tai denouncing the Biden Administration’s “disastrous decision” to support a proposal at the World Trade Organization (WTO) to waive intellectual property (IP) rights for COVID-19-related inventions and products.  The letter explains that the waiver is not limited to vaccines and “will do nothing to end the pandemic,” but will instead “undermine the extraordinary global response that has achieved historically remarkable results in record time and our nation’s global leadership in the technologies, medicines, and treatments of the future.”

IDEA Act Added as Amendment to U.S. Innovation and Competition Act

Senate Majority Leader Chuck Schumer (D-NY) this week filed the United States Innovation and Competition Act of 2021 as a substitute amendment to the Endless Frontier Act, thereby bringing that bill together with a number of other bipartisan bills, including the Inventor Diversity for Economic Advancement (IDEA) Act, which passed out of the Senate Judiciary Committee last month. The IDEA Act is aimed at improving the U.S. Patent and Trademark Office’s (USPTO) demographic data-gathering efforts to better understand the rates at which women, people of color, and lower-income individuals are inventing and patenting. The Innovation and Competition act is primarily aimed at out-competing China in critical technology sectors.

House Committee Targets AbbVie Patent Practices, Urges FTC to Investigate

Yesterday, Representatives Carolyn Maloney (D-NY), Jerrold Nadler (D-NY) and David Cicilline (D-RI) asked Federal Trade Commission (FTC) Acting Chair Rebecca Kelly Slaughter to open a formal inquiry into pharmaceutical company AbbVie’s practices, which the representatives said have worked “to delay U.S. biosimilar entry for [AbbVie’s] blockbuster drug Humira.” The request was prompted by documents uncovered as part of an investigation being conducted by the House Committee on Oversight and Reform into the company. “Based on our review, these documents indicate that AbbVie delayed biosimilar competition for far longer than warranted by its own internal evaluations of the strength of its patent portfolio, which anticipated biosimilar entry no later than 2017,” said the letter.

‘Holding States Accountable for Copyright Piracy’: White Paper Says Allen v. Cooper Has Put Creators and Copyright in Jeopardy

Last week, the Regulatory Transparency Project of the Federalist Society released a paper titled “Holding States Accountable for Copyright Piracy.” The paper was authored by Alden Abbott, Kevin Madigan, Adam Mossoff, Kristen Osenga, and Zvi Rosen and noted that the U.S. Supreme Court has recognized that “copyright is the engine of free expression that supplies the economic incentive to create and disseminate ideas.” However, citing Allen v. Cooper, the paper explained that a recent Supreme Court decision has jeopardized the U.S. copyright system by “severely limiting” the ability of creators and copyright owners to hold states accountable for infringement by holding that states can escape accountability for intentional acts of infringement by invoking the doctrine of sovereign immunity. The paper further emphasized the injustice that Allen has brought forth, since current law allows states to claim the benefits of copyright protection for their own works and works transferred to them, while escaping liability when they infringe the copyrights of others. Solutions were proposed to level the playing field, including Congress enacting a law validly abrogating state sovereign immunity and waiving sovereign immunity for states acting as market participants.

USIJ Responds to Remarks Made by Senator Leahy on World IP Day Regarding Prior USPTO Administration

In celebration of last month’s World IP Day, Senate Judiciary Committee Intellectual Property Subcommittee Chairman Patrick Leahy expressed his support for a determined effort to encourage more individuals and small companies across this country to invent new technologies and products. He also noted the need for the U.S. patent system to incentivize this effort. The Alliance of U.S. Startups and Inventors for Jobs (USIJ) strongly supports Chairman Leahy’s important objective of empowering startups and inventors, and we frankly think it has been underappreciated for many years…. However, we are concerned with one point raised by Senator Leahy without providing much detail – that the prior Administration took “steps to undermine the Leahy-Smith Act.”

This Week in Washington IP: Reviewing Small Business R&D Funding Programs, Researching COVID-19 Variants and Building Department of Defense Cyber Capabilities

This week in Washington IP news, committees at the House of Representatives will convene hearings on several topics related to technological innovation, including the CLEAN Future Act’s clean energy and sustainability accelerator, recent impacts of the SBIR and STTR small business grant-funding programs for R&D, as well as the Government Accountability Office’s recent report on lagging cybersecurity protocols within the U.S. Department of Defense. Elsewhere, the Information Technology & Innovation Foundation reviews a recently proposed bill that would create a nonprofit foundation to facilitate the goals of the U.S. Department of Energy, and the Center for Strategic & International Studies hosts events on evaluating the FASTER legislative proposal for accelerating innovation through tech transfer and the NSCAI’s recent report on maintaining dominance in AI development over foreign rivals.

This Week in Washington IP: Advancing NSF Scientific Research, Addressing Equity in AI and Broadband, and Clean Energy R&D Legislation

This week in Washington IP news, the Senate remains largely quiet as it enters a scheduled state work period on the 2021 legislative schedule. However, the House of Representatives has several hearings scheduled related to R&D, including a legislative markup hearing by the House Energy Subcommittee focusing on a pair of bills involving efforts to support clean energy research and a House Communications and Technology Subcommittee hearing on addressing gaps in broadband Internet equity for rural and tribal communities. Elsewhere, the Information Technology & Innovation Foundation hosts events this week exploring recent EU calls for global AI regulation as well as increased focus by antitrust regulators on so-called “killer acquisitions.”

IDEA Act Passed Out of Senate Judiciary Committee

The full Senate Judiciary Committee today passed the Inventor Diversity for Economic Advancement (IDEA) Act, which seeks to direct the United States Patent and Trademark Office (USPTO) “to collect demographic data – including gender, race, military or veteran status, and income level, among others – from patent applicants on a voluntary basis.” Representative Nydia Velázquez (D-NY), Senator Mazie K. Hirono (D-HI), Senator Thom Tillis (R-NC), and Congressman Steve Stivers (R-OH) reintroduced the bill in March of this year;  Senators Chris Coons (D-DE), Chuck Grassley (R-IA) and Patrick Leahy (D-VT), Richard Blumenthal (D-CT) and Senate Judiciary Committee Chair Dick Durbin (D-IL) are also co-sponsors.

Assignor Estoppel: Can’t We Just Leave It To Congress? (Answer: Not Really)

On Wednesday, April 21, the U.S. Supreme Court heard oral arguments in Minerva Surgical, Inc. v. Hologic, Inc., which concerns the doctrine of assignor estoppel. Generally speaking, assignor estoppel prohibits the assignor of a patent from later attacking the patent’s validity in court. Minerva argues that assignor estoppel is an ill-conceived relic of a bygone era that the Court should discard or at least substantially limit. Hologic argues that the doctrine is a bedrock part of the common law—a background against which Congress has been legislating for over a century—that the Court should preserve in full.

Senate IP Subcommittee Hearing on Improving Patent System Inclusivity Centers on Better Communication About Available Resources

On the morning of Wednesday, April 21, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing titled Improving Access and Inclusivity in the Patent System: Unleashing America’s Economic Engine. The discussion included panelists who represent many of the groups that are underrepresented in the U.S. patent system, with the intention of helping to inform both Congress and the U.S. Patent and Trademark Office (USPTO) on steps that can be taken to improve outreach to inventors from underrepresented groups and increase awareness of useful agency resources for prospective patent applicants.

PTAB Masters™ Day Four Features Judge Michel on How the PTAB is Working: ‘When Facts Change, Views Should Change’

The final day of IPWatchdog’s PTAB Masters™ 2021 program kicked off with more than 1,070 registrants and a discussion featuring retired U.S. Court of Appeals for the Federal Circuit Chief Judge Paul Michel, Meredith Addy of AddyHart, and IPWatchdog Founder and CEO Gene Quinn about the many obstacles facing patentees today in light of the Patent Trial and Appeal Board (PTAB) and an overburdened Federal Circuit. Michel said that, a decade after the America Invents Act (AIA) was passed, with the real-world knowledge we now have of the PTAB, “conclusions and practices should change in light of experience. When facts change, views should change.”