Posts Tagged: "Congress"

The America Invents Act on Its Fifth Anniversary: A Promise Thus Far Only Partially Fulfilled

Unfortunately, Mr. President, after five years I cannot report back that the AIA has yet ”improve[d] patent quality and help[ed] give entrepreneurs the protection and the confidence they need to attract investment, to grow their businesses, and to hire more workers.” The current implementation of PTO post issuance proceedings is undermining confidence in our patent system, chilling innovation at its roots, and, in eyes of some, giving the AIA a bad name.

House Judiciary subcommittee questions Lee on preventing time and attendance abuse at USPTO

“My team and I do not tolerate time and attendance abuse,” Lee told the subcommittee. While she did note that the USPTO had taken disciplinary actions against examiners that have abused time and attendance reports, such actions ranging from counseling to expulsion and repayment for hours not worked, she added that there was evidence that instances of time and attendance abuse were not widespread. She cited a report on the USPTO’s telework program issued by the National Academy of Public Administration (NAPA) in July 2015. The report found that “It would appear to be unlikely that [time and attendance] abuse is widespread or unique to teleworkers, and it does not appear to reflect the actions of the workforce as a whole.” Additionally, the report indicated that the agency’s telework program saved the agency $7 million each year on average by allowing examiners to continue working in spite of government shutdowns caused by weather or other reasons.

Constitutional and Economic Policy Problems Raised by Inter Partes Review (IPR) Suggest Congress Should Consider Acting

If Congress, nevertheless, is unmoved by the constitutional arguments for reforming the IPR process, it should weigh the strong economic policy arguments supporting IPR reform, which are outlined in various amicus curiae briefs supporting certiorari. As pointed out in a brief filed on behalf of the Houston Inventors Association, the IPR system “has a great attraction to ‘patent pirates’, companies who [sic] infringe patents and then deny liability, because the IPR has a high rate of success for ‘patent pirates’ to invalidate patents.” In other words, the IPR system facilitates infringers who want to free ride on the fruits of patentees’ labors, thereby ineluctably diminishing marginal incentives for investment in patentable innovations. As a brief filed on behalf of the University of New Mexico explains, the threat of IPR (in particular its anti-patent “death star” reputation), and inconsistencies between PTAB and federal district court patent validity standards, devalue and harm university patents.

10% of judicial emergencies are in EDTX, the preferred venue for patent litigation

Three of the judicial emergencies, just less than 10 percent of all judicial emergencies in the U.S. federal court system, are in the U.S. District Court for the Eastern District of Texas (E.D. Tex.). With the judicial vacancies in E.D. Tex., the concern is that a growing docket of patent infringement cases could create a bottleneck for the court, greatly increasing the amount of time that it takes the court to issue a decision. Business litigation is typically given a backseat to criminal litigation in district courts as American law upholds a suspected criminal’s right to a speedy trial. The vacancies also naturally result in an increased percentage of U.S. patent infringement cases assigned to Judge Rodney Gilstrap. This January, we reported that Judge Gilstrap could be deciding as much as 20 percent of all patent infringement cases filed in U.S. district courts. The fact that one judge could be deciding as much as one-fifth of the patent infringement docket at the district court level seems a little less than democratic.

Why Removing Section 101 Won’t be Enough

Removing section 101 would remove the language granting patents only to processes, machines, manufactures, compositions of matter, or new and useful improvements thereof. These categories however have only rarely been used to limit patentablity. The Court has in fact described these terms as expansive. Their removal would not suddenly make the inventions found unpatentable by the Court as abstract ideas or articles of nature patentable. As shown by the discussion above, the judicial exceptions do not rest on a legal interpretation of section 101 in any of its forms. They come from Supreme Court precedent established BEFORE section 101 existed.

Public Health and Bioscientific War on Superbugs is Hobbled by IP Uncertainties

How will our patent system treat this wonderful new discovery? How long will it take before its curative benefits can be deployed ? We can only hope that DC’s meddlers in our innovation ecosystem read the Ms. Sun’s article. Because however fervently the medical and scientific communities respond to this growing superbug crisis, IP’s DC government legal eagles are either unaware or unconcerned. The USPTO is regularly rejecting microbial patent applications in blind servitude to Alice-Mayo’s confusing eligibility formula. We can hope, but cannot be assured, the Federal Circuit will make sense some day of Alice-Mayo’s two-step test. But when? Worse, it appears that SCOTUS is infected by the anti-patent poison infesting our Capitol. How refreshing it would be to have our Congress and the nation’s highest Court be as concerned with superbugs as they seem to be with PR-created patent trolls.

Interoperability in electronic health records between VA, DoD the subject of Senate appropriations subcommittee hearing

The VA announced this April that its EHR system had reached certification for interoperability, months after the DoD had reached the same milestone, but investigators at the U.S. Government Accountability Office (GAO) reached a different conclusion. A recent GAO report indicated that, although the goal of true interoperability between the agencies can be met within two years according to agency planning, the two systems weren’t truly interoperable… It’s in this environment, heavily tinged by the recent GAO report, that a subcommittee of the U.S. Senate Committee on Appropriations came together to take a closer look at what was being done by the VA and the DoD to reach true interoperability.

After Cuozzo, Congress Must Take Back the Ball

While the Supreme Court spoke clearly and unanimously on the issue in Cuozzo, this hardly means the standard to be applied to claim construction in IPRs has been settled. Rather, it means only that the solution to the problem lies outside the courts. Because the Patent Office has adopted, by regulation, an unsatisfactory standard, Congress should step in. In the context of IPR proceedings, the Patent Trial and Appeal Board (PTAB) should be instructed to give claim terms their plain and ordinary meaning to one of skill in the art, just as the courts are instructed to do.

Business interests and consumer concerns clash at Senate hearing on FCC’s broadband privacy rules

On the morning of Tuesday, July 12th, members of the U.S. Senate Committee on Commerce, Science, & Transportation convened for a hearing on a notice of proposed rulemaking recently issued by the Federal Communications Commission (FCC). The hearing, titled How Will the FCC’s Proposed Privacy Regulations Affect Consumers and Competition, did much to talk about the potential effects of the FCC’s increased oversight of broadband Internet service providers even as partisan viewpoints among committee members were exposed.

Rep. Lamar Smith calls NOAA ‘afraid of innovation’ during hearing on weather satellites

The day’s most withering criticisms, however, came from the House science committee’s ranking Republican, Rep. Lamar Smith (R-TX). Smith contended that NOAA’s problems had been debated by the committee for years and focused on the delays and rising costs of the current JPSS program. “Congress should not continue to fund an over-budgeted program that has not performed to standards,” he said. He added that he wasn’t convinced that the NOAA is adequately addressing weather data gap risks and said they were “dragging their feet” on considering options. “If NOAA’s afraid of innovation, maybe they shouldn’t be in the business of deciding what technologies are needed to improve forecasting,” Smith said.

Congressional Action Required: Post-Expiration Patent Royalties

Though much of today’s proposed patent legislation is controversial, removal of the Brulotte rule remains largely uncontested by analysts and has historically garnered support on both sides of the political divide. Replacing the Brulotte rule with the rule of reason from antitrust law would improve market efficiency and spur innovation by increasing the dissemination of intellectual property in the marketplace. To unlock those benefits, Congress must modernize how Federal Courts evaluate post-expiration patent royalty cases.

Termination of an OED Disciplinary Proceeding: How A SOL Defense May Be Properly Construed

The Hearing Order concluded that the parties raised sufficient issues of material fact to warrant the ready-to-go Hearing to determine when respondent’s alleged misconduct was actually “made known” to an officer or employee of the USPTO pursuant to §32. Thus, the Hearing would be able to afford the fact-finder the opportunity to assess the credibility of the witnesses and draw inferences from the facts. Further, as the parties were already prepared for the Hearing on the merits of the case, the Judge believed that he would entertain testimony on both the SOL issue and the disciplinary sanction sought by the OED Director. Thus, the Hearing Order determined that the Judge found issues of material fact existed as to when the misconduct forming the basis for the disciplinary proceeding was “made known” to an officer or employee of the Office.

A Good Opportunity to Reframe the Patent Reform Debate

Corrosive changes in patent law are undermining research university commercialization of patented, federally-funded basic research, endangering our nation’s innovation ecosystem. Mounting uncertainty repels private investment needed to convert new discoveries into innovative public benefits. Prominent investment destabilizers include: post development invalidation, big-tech’s efficient infringement, increased costs of patent enforcement, looming congressional patent reform, and foreign IP theft and price/access manipulation. Collectively these uncertainties can crumble our country’s world-class innovation ecosystem. We must use the limited time left to reverse that catastrophic outcome by seizing every opportunity to do so.

The Defend Trade Secrets Act of 2016 Creates Federal Jurisdiction for Trade Secret Litigation

There is now federal jurisdiction for trade secret theft. The DTSA creates a federal cause of action for trade secret misappropriation that largely mirrors the current state of the law under the Uniform Trade Secrets Act, which has been adopted by 48 states. The DTSA uses a similar definition of trade secrets, and a three-year statute of limitations, and it authorizes remedies similar to those found in current state laws. The DTSA will not preempt existing state law, which will preserve and afford plaintiffs’ options in regards to whether to file federal or state claims and which court to select.

How Congress can ensure the patent system protects inventors and entrepreneurs

Congress can, and should, take at least four steps in restoring the health and vitality of our patent system: First, Congress should ensure that the patent grant is meaningful and valuable in the first instance. Second, Congress should reaffirm the exclusive nature of the patent grant. Third, Congress should clarify, and perhaps legislatively overrule, the cases addressing patent eligible subject matter, Alice, Mayo, and Myriad. Fourth, and finally, Congress should tread extremely carefully in the realm of so-called patent litigation reform.