Posts in Capitol Hill

Federal Circuit Will Not Reconsider Arthrex Appointment Clause Ruling

The U.S. Court of Appeals for the Federal Circuit has denied rehearing en banc in Arthrex v. Smith & Nephew, a decision that made the Patent Trial and Appeal Board’s (PTAB’s) administrative patent judges (APJs) “inferior officers” under the U.S. Appointments Clause, in order to skirt the problem that they had been unconstitutionally appointed under the America Invents Act. Five of the 12 Federal Circuit judges wrote separately to explain their reasons for denying, or dissenting from denial on, rehearing. Judge Moore wrote to concur with the denial, and Judges O’Malley, Reyna and Chen joined, saying that granting rehearing “would only create unnecessary uncertainty and disruption.” Moore added that the Arthrex panel followed Supreme Court precedent in concluding that APJs were improperly appointed principal officers, and also followed precedent in its solution which severed a portion of the statute “to solve that constitutional problem while preserving the remainder of the statute and minimizing disruption to the inter partes review system Congress created.”

Judge Paul Michel to Patent Masters Attendees: It’s Time to Wake Up to Preserve Our Patent System

Retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit Paul Michel told registrants of IPWatchdog’s Virtual Patent Masters program taking place today  that the U.S. patent system has been “weakened to the point of being dysfunctional.” This dysfunction has been especially harmful to small businesses and startups, as well as to innovation in the life sciences industry—which we need now more than ever. Asked by IPWatchdog CEO and Founder Gene Quinn whether the coronavirus pandemic may be a wakeup call to those in power about the importance of incentivizing innovation in the life sciences area, Judge Michel noted that experts in the vaccine industry have indicated that China now dominates vaccine research and production. “The current circumstances may shift the thinking of policy makers quite suddenly and quite far,” Michel said. “We definitely are crimping the human health efforts for prevention and cure of symptoms. Let’s hope this really is a wakeup call for our leaders.”

Trademark Modernization Act Would Restore Presumption of Irreparable Harm in Trademark Cases

Senators Thom Tillis (R-NC) and Chris Coons (D-DE) and Representatives Hank Johnson (D-GA), Doug Collins (R-GA), Martha Roby (R-AL) and Jerry Nadler (D-NY) yesterday introduced legislation to modernize the U.S. trademark system. The Trademark Modernization Act of 2020 is in part a response to the surge in fraudulent trademark filings, largely originating from China, that both the U.S. Patent and Trademark Office (USPTO) and Congress have been grappling with over the last year. Perhaps most notably, in a stated effort to better protect consumers by minimizing confusion about goods and services, the bill would restore the rebuttable presumption of irreparable harm when a trademark violation has been proven (thus clarifying eBay v. MercExchange).   

Senate IP Subcommittee Examines Foreign Approaches to Digital Piracy in Second Hearing on U.S. Copyright Reform

Senate IP Subcommittee Chair, Senator Thom Tillis (R-NC), yesterday led the second in a series of Subcommittee hearings addressing the possibility of updating the U.S. Digital Millennium Copyright Act (DMCA). The hearing, titled “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?”, was aimed at examining foreign copyright laws in order to consider what may or may not be beneficial if adopted by the United States. The first of two panels included four witnesses from academia while the second panel included members of industry and a former member of EU Parliament.

This Week in Washington IP: Policing Digital Piracy in Other Countries, Self-Preferencing in Digital Platforms and 2021 Budget Requests for Cybersecurity and Spectrum Auctions

This week in Washington, DC, the House of Representatives kicks off the week’s schedule for technology and innovation hearings with the House Communications Subcommittee marking up bills related to wireless spectrum auctions on Tuesday morning. Spectrum auctions will be discussed in both houses of Congress during hearings to examine the 2021 budget request for the Federal Communications Commission. On Tuesday, the Senate IP Subcommittee will hold a hearing to focus on how other countries counteract digital piracy. The week closes with a Senate Agriculture Committee hearing that will explore biotechnology regulatory frameworks that can impact gene editing and other agricultural technologies.

Debate Continues Between ALI and Congress on Copyright Restatement Project

The American Law Institute (ALI) has submitted a second response stemming from a letter sent by members of Congress last year expressing serious concerns over ALI’s Restatement of Copyright project. In December 2019, Senator Thom Tillis (R-NC) and Representatives Ben Cline (R-VA), Martha Roby (R-AL), Theodore Deutch (R-FL) and Harley Rouda (D-CA) sent a letter to ALI stating that laws created through federal statute like copyright are “ill-suited for treatment in a Restatement” and threaten to muddle the law. The U.S. Copyright Office, the American Bar Association (IP Law Section) and the U.S. Patent and Trademark Office have raised similar concerns.