Posts Tagged: "Congress"

With congress out of session this week, it is a good time to meet the members of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, which—unlike the Senate IP Subcommittee—has not yet convened this term. While the House may be largely preoccupied with issues outside the IP realm thus far, other House committees and subcommittees have been actively debating a number of topics relevant to IP. The 116th Congress brings both new and old faces to the Subcommittee with varying levels of IP knowledge and activity. Many of its members, such as Hakeem Jeffries and Zoe Lofgren, are well-versed in IP issues, starting with the full Judiciary Committee Chairman, Jerrold Nadler.

Representative Steve Stivers (R-OH) and Representative Bill Foster (D-IL) introduced the Support Technology & Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act, which would in part restore injunctive relief as a remedy for patent infringement, in the U.S. House of Representatives in March of last year. While there has been much talk about closed-door discussions taking place on Capitol Hill recently around fixing Section 101 law, the House has not yet re-introduced the STRONGER Patents Act, and has thus far been focused on other issues this term. But Rep. Stivers seems confident that the Act has a chance this term, and says that this could be the consensus legislation the House needs. Read below for more on Rep. Stivers’ thoughts about patent reform in the 116th Congress, where the America Invents Act went wrong, and how we ensure the U.S. patent system is restored to number one.

A number of organizations, including Ericsson, Nokia, Philips, Qualcomm, the Innovation Alliance and the Licensing Executives Society, have sent two separate letters to U.S. Attorney General William Barr, USPTO Director Andrei Iancu, and Secretary of Commerce Wilbur Ross stating their support for the United States’ decision to withdraw the Department of Justice, Antitrust Division’s assent to the 2013 joint DOJ-U.S. Patent and Trademark Office “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” (the 2013 Joint Policy Statement). The letter sent by Ericsson, Nokia, Philips, and Qualcomm begins by explaining that those signing the letters collectively spend many billions of dollars annually to “the development of cutting-edge that substantially contribute to the social welfare and quality of life of U.S. consumers,” and “and employ tens of thousands of people in the U.S.” The letter goes on to explain that injunctions are necessary to address the widespread patent infringement that has occurred in recent years; infringement that risks innovators’ ability to continue to innovate and create next generation technologies. Without property protections it is economically irrational to invest the billions of dollars required to create cutting-edge technologies.

This week in Washington, D.C., Capitol Hill is silent due to district work periods for the House of Representatives and state work periods for the Senate. However, the nation’s capital is still very busy with a collection of think tank events related to innovation and technology. A pair of events at New America looks at how technology and social media can stem the tide of extremist ideologies or how advances in DNA testing can help solve cold cases. Cybersecurity challenges at the next Summer Olympic Games are the topic of discussion at the Wilson Center. The Heritage Foundation also hosts a pair of events looking at how the Constitutional Framers viewed property and issues with China-based Huawei’s dominance in 5G. Closing out the week is a Friday event at the Information Technology & Innovation Foundation exploring challenges to the U.S. Postal Service in the e-commerce era.

In September 2018, the United States Patent and Trademark Office (USPTO) announced the substantial revision of Standard Operating Procedures (SOPs) for the paneling of matters before the Patent Trial and Appeal Board (PTAB) (SOP1) and precedential and informative decisions (SOP2), based upon feedback the Office received from stakeholders, courts, legislators, and six years of experience with America Invents Act (AIA) trial proceedings. Now, the USPTO’s Precedential Opinion Panel (POP)—which includes USPTO Director Andrei Iancu, Commissioner for Patents Drew Hirshfeld, and Acting Chief Administrative Patent Judge Scott Boalick—has issued its first ever decision, holding that a petitioner may be joined to a proceeding in which it is already a party; that the Board has discretion to allow joinder of new issues in an existing proceeding; and that the existence of a time bar under 35 U.S.C. § 315(b) is one of several factors to consider when exercising this discretion. Despite that guidance, the POP emphasized that such discretion should be used only in limited circumstances, “namely, where fairness requires it and to avoid undue prejudice to a party.” Because the instant request for joinder was filed as a result of Petitioner’s errors, the Board dismissed the IPR petition, noting that “there are no fairness or undue prejudice concerns implicated, and the Petition is otherwise time-barred under § 315(b).”

The data shows that Section 101 allowances at the USPTO are on the rise after a long period of decline, but the 101 situation still remains “alarming,” said panelists during IPWatchdog’s webinar—”A Tale of Different Software Innovations: The Uneven Impact of Alice”—last Thursday, March 7. While Congress is currently considering ways to address the patent eligibility problem, the likelihood of a legislative fix this year is slim, said Bob Stoll of Drinker Biddle. “I believe we will see introduction of legislation on 101 as early as this summer, but I don’t anticipate anything being enacted,” Stoll said. “There’s a lot more going on to occupy their interests on the Hill.”

In an expected move, Huawei filed a lawsuit against the United States in the U.S. District Court for the District of Texas on March 6. Huawei Technologies v. U.S., 4:19-cv-00159, U.S. District Court, Eastern District of Texas (Sherman). In its mammoth 54-page complaint, the company alleges the United States and its agencies violated the Federal Constitution when it singled out Huawei in the 2019 National Defense Authorization Act (NDAA). U.S. authorities are concerned that China could use Huawei’s equipment to spy on communications networks. Having offices in Plano, Huawei had jurisdiction to file in the Eastern District of Texas, widely recognized as a plaintiff-friendly court for technology matters. But despite its considerable resources and legal muscle, Huawei will have a challenging time proving its case in court.

Today, March 13, the Senate Subcommittee on Intellectual Property met to discuss “Oversight of the United States Patent and Trademark Office,” with USPTO Director Andrei Iancu as the sole witness. IPWatchdog will report the details of that hearing in full, but in the meantime it is worth reviewing what the Subcommittee covered in its first hearing, held February 26, which included the report of the Intellectual Property Enforcement Coordinator (IPEC) on the findings of the IPEC’s Annual Intellectual Property Report. While the hearing was nominally about the IPEC report, comments made and questions raised by Subcommittee members throughout the course of the hearing made it clear that the Subcommittee intends to play an important role in the debate around IP and patent law during the 116th Congress.

On the morning of Thursday, March 7, the House Ways & Means Committee’s Subcommittee on Health held a hearing titled Promoting Competition to Lower Medicare Drug Prices. The hearing focused a great deal on the effect of patents in the pharmaceutical industry as they relate to pricing. Although some of the Republican membership of the subcommittee pointed out issues with various proposals to limit patent protections for drugmakers, the panel acted largely as a firing squad for patents. In his closing statement, Rep. Doggett expressed his dissatisfaction with the tenor of the day’s debate. “I view it as encouraging that there is bipartisan recognition of the serious problems so many Americans are facing with, really, prescription price gouging,” he said. “The question is whether we’ll have any bipartisan agreement on doing anything about it.”

This week on Capitol Hill, both houses of Congress are abuzz with a full schedule of hearings related to science, technology and innovation topics. In the House of Representatives, various committees explore a proposed net neutrality bill, innovation in the aviation industry, and ways to improve competition in the pharmaceutical industry—a hot topic of debate in recent weeks. Both the House and the Senate will hold hearings on the future of America’s space program. The Senate will also consider consumer data privacy regulations, rural broadband investments, and military applications of artificial intelligence. On Tuesday, a pair of events at the Brookings Institution will look at the impact of technological advances on public policy, as well as the artificial intelligence race between the U.S. and China.

This week in Other Barks & Bites: The United Nations highlights the importance of women in innovation on International Women’s Day; Comments due today on USPTO Section 101 Guidance; FDA Commissioner Scott Gottlieb resigns; a Senate bill with six bipartisan co-sponsors would increase requirements on patent disclosures for biologics; USPTO Director Iancu speaks out on Alice; Apple announces its intention to increase its presence in San Diego while its patent battle with Qualcomm heats up; Chinese copyright registrations increased by double digit percentage points in 2018; Stanley Black & Decker faces off against Sears in a trademark infringement battle over branding for Craftsman tools; Amazon announces that it will close dozens of pop-up stores in the U.S.; and Democrats from both houses of Congress introduce a new net neutrality bill.

The state of patent eligibility in America is shocking. Between the passage of the 1952 Patent Act and 2012, when the U.S. Supreme Court decided Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012), the patent eligibility threshold was an exceptionally low hurdle. A group of Senators and Representatives are currently considering a legislative fix to this patent eligibility debacle created by the Supreme Court and perpetuated by a Federal Circuit unwilling to define the contours of a sensible patent eligibility test. These talks, which are being held in closed-door roundtable format, will seek legislative language to introduce soon. It is anticipated that bills will be introduced in both the House and Senate sometime this summer. What those bills will look like seems to be genuinely up in the air—or perhaps it’s better to say open for discussion. If the discussion should turn to the one thing Congress could do that would have the most impact, the answer would be clear. In order to have the most immediate, positive impact Congress must expressly overrule Mayo. The root of all the patent eligibility evil lies with that single Supreme Court decision.

I am sure that the justices of the Supreme Court did not anticipate the confusion they created when they issued their controversial decision in Alice Corporation v. CLS Bank in 2014. That case effectively upended well-established precedence when the Court unanimously held that a computer-implemented scheme for mitigating settlement risk was not patent eligible subject matter because the claims were drawn to an abstract idea, and that merely requiring generic computer implementation fails to transform the claims to eligible subject matter. The Court itself said their holding was to be narrowly construed, but in providing a vague, two-step test to determine whether something is patent eligible, they unleashed a world of hurt on some of our domestic industries seeking patents in cutting-edge technologies. The application of the Alice test to some of our health-related industries is having disastrous effects. On February 6, 2019, in a split decision, the United States Court of Appeals for the Federal Circuit (CAFC) found in Athena Diagnostics v. Mayo Collaborative Services that diagnostic methods are not patent subject matter eligible unless they embody a separate technical improvement beyond the correlation of certain antibodies in bodily fluids to particular diseases. In a footnote, the majority lamented that they felt compelled by Supreme Court precedence to render their decision, but recognized that protection of diagnostic methods would be for good for society. The Athena case does not portend well for the CAFC adoption of the recent USPTO guidance on Section 101. The courts will eventually be able to either put their imprimatur on those guidelines or discard them. The sooner that is done, the better.

Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Supreme Court in Fourth Estate v. Wall-Street.com, et. al. Monday morning, March 4, holding that copyright registration occurs—and thus, an infringement action can only be brought—once the Copyright Office officially registers a copyright. The case considered whether “registration of [a] copyright claim has been made” within the meaning of Section 411(a) of the Copyright Act “when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the Tenth Circuit and, in the decision below, the Eleventh Circuit have held.” In the end, the Court unanimously agreed that registration is a requirement to commence suit, but, once granted, the copyright owner can sue for infringement that occurred both before and after registration.

On Monday, March 4, Justice Brett Kavanaugh issued the decision for a unanimous Supreme Court in Rimini Street, Inc. v. Oracle USA, Inc., which asked whether the meaning of “full costs” under 17 U.S.C. § 505 of the U.S. Copyright Act extends to damages outside of the six categories of costs that U.S. district courts can award against a losing party as outlined in 28 U.S.C. § 1821 and 28 U.S.C. § 1920. In siding with petitioner Rimini Street, the Supreme Court held that “full costs” in the copyright litigation context are limited to Sections 1821 and 1920, reversing the Court of Appeals for the Ninth Circuit’s decision to award $12.8 million to Oracle covering litigation expenses outside of the statutory schedule of costs.