Posts Tagged: "Capitol"

The patent deal with the St. Regis tribe doesn’t shield the patents from validity challenges coming from a Hatch-Waxman trial recently concluded in Texas federal court. “To be clear, if the District Court ruling is adverse to Allergan’s patent position, and there is an FDA approval of a generic version of RESTASIS®, that product could enter the market many years in advance of the listed patent expiry dates,” Allergan’s note reads. The drugmaker further argues that the IPR process in force at the PTAB undermines the 33-year-old Hatch-Waxman statutory regime regarding validity challenges to pharmaceutical patents, is subject to changes to validity proceedings implemented within the executive branch which are not impartial, and creates an unfair burden on innovators by opening patents to challenge proceedings which are often inconsistent before both the PTAB and the Court of Appeals for the Federal Circuit, the court to which PTAB decisions can be appealed.

Senator McCaskill (D-MO) has introduced a bill to abrogate the sovereign immunity of Indian tribes as a defense in inter partes review (IPR) proceedings at the United States Patent and Trademark Office. Indeed, the sole purpose of McCaskill’s short, ill-conceived and hastily assembled bill is to make it impossible for Native American Indian Tribes that own patents to assert sovereign immunity when those patents are challenged in proceedings at the Patent Trial and Appeal Board… What this means is McCaskill’s bill cannot and will not remove claims of sovereign immunity from PTAB proceedings. McCaskill’s bill would only discriminate against Native American Indian Tribes.

Congressman Lamar Smith (R-TX), has sponsored a bill to amend Rule 11 — H.R. 720. The changes are made to remove the safe harbor provision and make sanctions mandatory. This bill has passed the House. A companion bill — S. 237 — has been introduced in the Senate with no action yet being taken… The proposed changes to Rule 11, if enacted, will have an impact of keeping unrepresented parties out of courts, and make the U.S. courts even more inefficient. It will have an adverse impact on patent owners in patent cases… Given the nature of patent litigation, experience teaches that it is inevitable that whenever a case is disposed of the winner will almost certainly try to shift litigation fees by any means possible, including by invoking Rule 11 sanctions. The parties with strong financial powers will have better chances to get sanction awards.

Both the U.S. House of Representatives and the U.S. Senate are currently contemplating versions of the Defending Against Imitations and Replacements of Yogurt, Milk and Cheese to Promote Regular Intake of Dairy Everyday (DAIRY PRIDE) Act; the House version is bill H.R.778 and the Senate’s is S.130. If passed, the bill would amend the Food, Drug, and Cosmetic Act to prohibit the sale of any food using the market name of a dairy product, is not the milk of a hooved animal, is not derived from such milk and doesn’t contain such milk as a primary ingredient. The findings section of the bill notes that the U.S. Food and Drug Administration (FDA) already has regulations finding that milk is “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” The Senate bill is originally sponsored by Sen. Tammy Baldwin (D-WI) while the House version is sponsored by Rep. Peter Welch (D-VT). The House bill includes five original co-sponsors: Rep. Michael Simpson (R-ID); Rep. Sean Duffy (R-WI); Rep. Joe Courtney (D-CT); Rep. David Valadao (R-CA); and Rep. Suzan DelBene (D-WA).

Those now familiar with IPR proceedings will already have recognized how little resemblance current IPR proceedings have to what most supporters of the AIA envisioned upon its passage. In current practice, the role of the Director as an independent IPR gatekeeper never materialized because the USPTO’s implementing rules bypass the Director altogether, assigning the institution function to the PTAB, which in turn routinely assigns both the institution and final decisions to the same three judge panel. As a result, most of the safeguards against patent owner harassment were lost…. By failing to adopt the implementing rules needed to carry out the intent of the AIA, and by adopting other rules and procedures that are plainly skewed towards petitioners, the PTAB has intentionally tilted its IPR proceedings against patent owners. While this has been good for the PTAB, which has quadrupled in size, it was neither Congress’s intent nor that of most of AIA’s supporters to create an unfair IPR patent “killing field.”

There are clearly many thousands of companies both large and small with far greater experience and in a far better position to advise Congress on the issue of patent reform. So why Mapbox? As is so frequently the case whenever business and politics intersect, follow the money! We have done just that and we’ve found that a no-name, no-experience company like Mapbox, without any patent applications and no patent litigation experience became thrust into the public debate over patents because all the money people behind Mapbox are card carrying members of the anti-patent efficient infringer lobby.

Why does Mapbox’s viewpoint on patent litigation echo in the halls of Congress given the fact that it doesn’t appear that it has faced abusive patent litigation? In fact, it almost looks like there is no merit to Lee’s statement that “Mapbox has had multiple experiences with patent trolls: non-practicing entities who file meritless lawsuits that are cheaper to settle than to defend.” Mapbox certainly hasn’t had multiple experiences with lawsuits… The one patent case Mapbox has faced as a defendant was filed last December by Shipping & Transit LLC, a company which itself has been very litigious against alleged patent infringement having been listed as a plaintiff in 172 patent suits. The one Shipping & Transit suit filed against Mapbox terminated in 92 days and has a total of nine docket items and the original complaint is all of six pages long.

The U.S. patent system is the primary contributor for the U.S. economy. Since the foundering of the nation, the patent system has fostered an innovation culture that is directly responsible for making inventions that are more than all inventions accumulated in all major civilized regions in several thousands of years. However, the U.S. has inherent disadvantages in the political system and court systems… After the irreparable damages of public trust in the patent system, overhauling the patent system is no longer a feasible option. To continue existing as a powerful nation in the world, the U.S. must put its population back to the inventing business and create a renewed innovation culture, which could reach the entire population. It cannot count on the “miserable system” known in Thomas Edison’s time. Due to intensified competition and critical roles of technologies in competition, America must do far more than what is necessary to turn the dead patent system back to the same “miserable system”. One more thing that the Congress should do is to revive all invalidated patents under the AIA.

Many were stunned to learn that Senator Angus King (I-ME) included language undermining the Bayh-Dole Act in the report of the Senate Armed Services Committee as it approved the National Defense Authorization Act. The the language “directs” the Department of Defense (DOD) to issue compulsory licenses under Bayh-Dole “whenever the price of a drug, vaccine, or other medical technology is higher in the U.S. than the median price charged in the seven largest economies that have a per capita income at least half the per capita income of the U.S.” The provision gives the Department no discretion— it must comply. Apparently no one bothered to check with DOD or anyone familiar with the law to discover that this language incorporates a long discredited theory of how Bayh-Dole operates, or of the significant damage it would do to the development of badly needed medicines and the U.S. economy. The bill is headed to the full Senate for consideration. So before that happens, let’s consider why this is such a bad idea.

Eight tech companies owning a collective 115,000 patents announced the establishment of the High Tech Inventors Alliance (HTIA), an organization they claim is “dedicated to supporting balanced patent policy.” According to coverage by Congressional blog TheHill, the formation of the HTIA is intended to further debate on Capitol Hill over patent reform… The members of the alliance are your typical “Who’s Who” of the efficient infringer lobby… Every member of the HTIA, including Adobe, Cisco, Oracle and Salesforce.com all lobbied on issues related to the Innovation Act.

The day’s hearing focused on the patent troll narrative despite the lack of a substantive connection between that narrative and the TC Heartland case… Rep. Darrell Issa (R-CA), chairman of the House IP subcommittee, started his remarks by asking to what degree the Supreme Court’s decision in TC Heartland fixed a decade-old problem. Noting that new lawsuits have hit consumer electronics giant Apple (NASDAQ:AAPL) in the Eastern District of Texas (E.D. Tex.), Issa went on to say that “patent trolls, in my opinion, are the scourge of the patent world. We have time and time again attempted to stop patent trolls while in fact being objected to by genuine innovators who feel that they will be trampled in our effort to stop the worst of the worst.” Issa also opined that the TC Heartland decision now likely makes businesses of all kinds avoid the jurisdiction of E.D. Tex. “Why set up shop in Eastern Texas if it creates venue for patent infringement,” he said.

At the same time that America’s business climate has become too acidic for a vast majority of domestic startups, the nation has also been losing its place in the global supply chain while other major global economies, like China’s, are becoming increasingly self-reliant… This report identifies trending emerging tech like virtual reality, augmented reality, machine learning, smart robots, gesture control devices, smart data discovery and virtual personal assistants, as well as consumer expectation levels and the length of time until the emerging tech becomes fully commercializable. As Aronoff noted, much of the innovation in those sectors relies on software. “Is that even protectable anymore?” Aronoff asked… With the new patent enforcement gauntlet in the U.S., what does it really take for a small company to protect its IP in the current system?

The beauty of the patent troll narrative was it took little time to absorb and instantly painted a pejorative picture in the minds-eye of the listener. It became easy to repeat. Its bumper-sticker simplicity lead to widespread usage, which ultimately (and quickly) became accepted as fact without much, if any, critical thought. Most important, the strategy by-passed the arcane complexity of its convoluted subject matter by shifting the burden of Congressional persuasion to its victimized and under-resourced opponents… Expect big tech and its leftist bed-fellows to exert more effort to “de-propertize” patents on Capitol Hill and in the courts… Expect proponents of reform to mischaracterize patent reform as a step towards tort-reform, which is nearly comical given that the tortfeasor in the equation is the party that is trampling on the property rights of patent holders through infringement, which is many times purposeful and willful.

H.R. 1695 would amend 17 U.S.C. 701. Currently, the Register of Copyrights is appointed by the Librarian of Congress, and acts under the Librarian’s direction and supervision. That would change if and when H.R. 1695 becomes the law of the land. The substantive change would add the following sentence: “The Register of Copyrights shall be a citizen of the United States with a professional background and experience in copyright law and shall be appointed by the President from the individuals recommended under paragraph (6), by and with the advice and consent of the Senate.”

Multiple members of the hearing’s witness panel attested to the problems created when agency plans change during a change of administration, a problem which Lt. Gen. Thomas P. Stafford, a NASA astronaut during the Gemini and Apollo programs and a member of NASA’s International Space Station Advisory Committee, said has been detrimental to the space program. “We have in recent years seen all too clearly the consequences of a failure to carry out long-term objectives,” Stafford said, referring to NASA’s activities under the Obama Administration as “eight years of lost opportunities… NASA’s present does not do justice to its past.” During questioning, Stafford recommended reestablishing the National Space Council (NSC), which had shown effectiveness in the past in ensuring that multi-year NASA missions which span administrations, such as the Apollo mission to the moon, reach their goal. Stafford also noted that if the federal government had stuck to previous plans to reach Mars, such as were discussed as part of the Space Exploration Initiative carried on under the administration of George H. W. Bush, humans could have reached Mars as early as 2016.