Posts Tagged: "Congress"

Earlier today Congressman Darrell Issa (R-CA), announced that he will not seek re-election in 2018 and will retire from Congress. Issa, who currently Chairs the House’s Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet has been an outspoken advocate for the need for more patent reform… If Republicans hold on to a majority in the House it seems likely that Congressman Doug Collins (R-GA) will take over as Chair of the House IP Subcommittee. Collins, an ally to inventors and creators, is currently Vice-Chair of the House IP Subcommittee. If Collins is granted the gavel that would be good news for patent owners and those generally supportive of strong intellectual property rights.

First, I predict that the United States Supreme Court will find post grant procedures under the America Invents Act to be unconstitutional. It is my belief they took Oil States not as a patent case, but rather as an Administrative State case, and if that is correct this could be the first in a series of decisions over a number of years that will pull authority back from the growing Administrative State and toward the Judiciary. Second, in the event the Supreme Court does not declare post grant challenges unconstitutional, I predict the new USPTO Director will substantially modify PTAB rules and procedures, making them more fair and balanced. Third, again assuming my first prediction is incorrect, I predict the PTAB will continue to ignore Eleventh Amendment immunity and will likewise rule Indian Tribes do not deserve to claim sovereign immunity when in front of the PTAB. This will set up a showdown at the Federal Circuit that will ultimately be settled by the Supreme Court, likely in 2019. Finally, I predict there will be continued discussion about patent reform, with the conversation becoming increasingly pro-patent as Members of Congress continue to see undeniable proof that the U.S. patent system is regressing while the patent systems of the EU and China are on the rise. More specifically, I predict that the U.S. will fall out of the top 10 for patent protection in the annual Chamber IP Index, which will send a shockwave through the Capitol.

For my wishes, I’ll make four. First, as I did last year, I again continue to wish for patent eligibility reform in Congress that would overrule Mayo, Myriad and Alice.With there major industry organizations coming out in 2017 to support legislative reform perhaps this wish will eventually come true, although as of now it seems to be a long shot in 2018. Second, I hope the Federal Circuit dramatically decreases its use of Rule 36 affirmances, and specifically stops using this docket management tool when cases are appealed from the PTAB and also with respect to appeals dealing with 101 patent eligibility issues. Third, I wish for the AIA post grant procedures to be declared unconstitutional, which with the Supreme Court set to decide Oil States in 2018 is at least plausible. Finally, assuming the Supreme Court does not do away with post grant challenges, I wish for the new PTO Director to dramatically reform the post grant process in ways that remove the systemic biases that have made the proceedings hopelessly one-sided against patent owners.

Invariably, the Supreme Court takes a provision or two from pending legislation and makes it law. Will they do the same now that pro-patent reform is actually pending in Congress? After so many years of staying out in front of patent reform legislation that has weakened the U.S. patent system, dropped early stage investment by 62% and brought us a 40 year low in startups thus sending venture capital, startups and complete swaths of new technologies to China, how odd it will be if the Supreme Court doesn’t do the same now that pro-patent reform is actually pending in Congress.

Unlike previous years where we had near unanimity on the biggest moments, this year we see wide variety of thought, from SCOTUS to Capitol Hill to the DOJ… Steve Kunin focus primarily on the Supreme Court patent cases, which Bob Stoll also mentions but then goes on to discuss the lack of momentum for more patent reform and the nomination of a new Director for the USPTO as key moments. Paul Morinville also mentions the political on Capitol Hill, but focuses on Members of Congress not buying into the patent troll narrative like they once did. Erik Oliver focuses on a rebound in the patent market, Alden Abbott sees a pro-innovation, pro-patent Assistant Attorney General for Antitrust as a dramatic shift for the DOJ. Ben Natter, Jess Sblendorio and Alexander Callo focus on the Supreme Court’s decision in Matal v. Tam, which declared the prohibition against registering disparaging trademarks unconstitutional.

It is that time once again when we look back on the previous year in preparation to close the final chapter of 2017 in order move fresh into the year ahead. 2017 was a busy year in the patent world, although change was not as cataclysmic as it had been in past years, such as 2012 when the PTAB and post grant challenges began, in 2013 when AIA first to file rules went into effect, or in 2014 when the Supreme Court decided Alice v. CLS Bank. It was, nevertheless, still an interesting year… To come up with the list below I’ve reviewed all of our patent articles, and have come up with these top 10 patent stories for 2017. They appear in chronological order as they happened throughout the year.

Earlier today President Trump’s nominee to become the new Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office was unanimously approved by the Senate Judiciary Committee… Favorably reporting Andrei Iancu to the full Senate for confirmation as Director of the USPTO is an important next step along the nomination path. This being done today sets up a possibility that Iancu could be confirmed by the full Senate before the end of 2017, although time is fast running out.

This week US Inventor, an inventor organization working in Washington DC and around the US to advocate for strong patent protection for inventors and startups, rolled out the U.S. Inventor Act in the House of Representatives… Early stage funding for U.S. startups has dropped 62%. We are at a 40 year low in new business formation. What used to be approximately 85% of all venture capital invested in U.S. startups is now about half invested in China’s startups. Not surprisingly, in communist China, the startup market is booming, growing by 23%. As a result, China has taken the lead in swaths of new technologies, including technologies critical to our national security like artificial intelligence (AI). AI runs not only our power grids, but our tanks and ships. We will soon be mired in the swamp of a national security disaster as China moves even further ahead and we are forced to purchase these products from them.

More disturbing than the harmful effects the proposed changes would have – this signals a continuing approach toward patent rights as not being a property right, which contradicts the Patent Act and centuries of precedent. Indeed, the government’s destruction of the once great U.S. patent system is built upon a simple, yet scary philosophy: Where it matters, no one in government actually considers a patent to be a property right. If a patent is not a property right, a patent can be treated however the political winds blow (or political money flows). And that is exactly what has happened. So why not tax it more?

In justifying the constitutionality of the inter partes review (“IPR”) statute enacted by the America Invents Act (“AIA”), a common refrain persistently asserted is that patent rights emanate solely from federal statute and are therefore public rights, derived from a “federal regulatory scheme.” Another reprise is the remedial tenor of the IPR statute: Congress merely authorized a “narrow” post-issuance means for the agency to “correct its own errors.” My paper shows that both contentions above are without merit; that the exclusive patent right emanates from the inventor – not from Congress – and therefore the right adjudicated in IPRs is a “private right”; and that the notion of post-issuance “error correction” is fiction, as it overlooks the irreversible and uncorrectable exchange of rights upon patent issuance.

Earlier today Congressman Bob Goodlatte (R-VA), who has been Chair of the House Judiciary Committee and a strong proponent for patent reform, announced that he would be leaving Congress at the end of his current term and not standing for reelection in 2018… With Goodlatte exiting the fate of further patent reform efforts in the House will largely depend upon who ultimately is tapped to wield the Chair’s gavel. Congressman Darrell Issa (R-CA) can be expected to make an internal push for the gavel.

What is a bad patent? Congress has established the requirements for obtaining a patent. The patent office grants a patent to applicants when they meet those requirements. It is simple. No trolls involved. If there are bad patents, then either the law is bad, or the patent office is not following the law when they grant the patents. Is the patent office issuing patents that do not meet the requirements set forth by Congress in the Patent Act? Or is the Patent Act too generous in setting forth the conditions for granting a patent?

The rule treating the transfer of a patent prior to its commercial exploitation as being available for long-term capital gains treatment would be repealed… Obviously, it is disheartening to see Republican leadership move to treat patents in this way, which suggests they do not view patents as a private property right. Not viewing patents as a private property right has become a growing and disturbing trend.

Longtime Texas Representative Lamar Smith (R-TX), chairman of the House Committee on Science, Space, & Technology, will be retiring from his duties on Capitol Hill and will not seek reelection for another term of service. Smith, a former Chairman of the House Judiciary Committee and powerful member of the Republican leadership, will leave a void. His retirement marks the end of a 30-year tenure of public service and will immediately create a leadership void on the House committee responsible for overseeing our nation’s science and space policies.

Overrule eBay v. MercExchange and grant permanent injunctions to victorious patent owners as a matter of right. This singular change to U.S. patent laws – which is also found within the STRONGER Patent Act at Section 106 – would rectify much of the mischief caused by Congress and the Courts over the last 12 years. No single decision has so singularly tilted the balance between patent owners and technology implementers. Indeed, if you ask knowledgeable innovators and patent owners about the one decision or event they would undue if they could in order to bring the system back to some acceptable level of equilibrium and the answer will either be to overrule eBay v. MercExchange or to do away with post grant challenges at the PTAB.