Posts Tagged: "David Kappos"

In a webinar hosted today by the Council for Innovation Promotion (C4IP), the organization’s founders, Andrei Iancu and David Kappos, both former Directors of the U.S. Patent and Trademark Office (USPTO), spoke with former U.S. Secretary of Commerce, Gary Locke, about the increased skepticism surrounding a plan to extend the waiver of intellectual property protections for COVID-19 vaccines under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to COVID-19 diagnostics and therapeutics. According to Kappos, while World Trade Organization (WTO) member countries were supposed to decide on December 17 whether to extend the waiver, “given the rising opposition and other countries starting to raise their hands” with questions, “it’s seeming likely the WTO will defer its decision until the New Year.”

Patent eligibility law in the United States is in a state of disarray that has led to inconsistent case decisions, deep uncertainty in the innovative, investment and legal communities, and unpredictable outcomes in patent prosecution and litigation. These facts have been extensively documented in multiple sources, including: the statements of all 12 active judges of the nation’s only patent court, the U.S. Court of Appeals for the Federal Circuit (confirmed prior to October 2021); the findings and reports of the Executive branch across all recent Administrations; the bi-partisan conclusions of Congressional committees; a robust body of academic studies; and at least forty separate witness statements at the 2019 hearings on this issue before the Senate Committee on the Judiciary Subcommittee on IP, including statements from advocates that oppose Section 101 reforms.

On Wednesday night, during a launch event for the Council for Innovation Promotion (C4IP), Senator Chris Coons (D-DE) announced that he has come on as a co-sponsor of the Patent Eligibility Restoration Act of 2022. Senator Thom Tillis (R-NC) introduced the first draft of his bill in August, but had no co-sponsors at the time, which caused some to question the chances of the bill passing anytime soon. But tonight, Coons said he is happy to be a co-sponsor and both Coons and Tillis seemed optimistic about the prospects for intellectual property legislation in the next congress—no matter which of them ends up as Chair.

The LeadershIP 2022 Conference, for which IPWatchdog was a partner, took place earlier this week in Washington, DC, and featured leaders in U.S. government and intellectual property (IP) discussing the way that IP policies interact with and impact national security issues. The overarching sentiment from panelists was that all three branches of U.S. government are failing to prioritize a strong IP system, which could result in the United States falling behind as an innovation leader, to the benefit of potential bad-faith competitors like China and Russia.

The story of hold-up has seduced many who believe patents stand in the way of innovation, but what product or service has ever been held up by patent owners, or patent wars? Even in the area of smartphones or telecommunications, we can reliably predict that next year’s technology will be superior to this year’s technology, as devices and the services…

A webinar hosted on Tuesday, January 12, by The Federalist Society’s Regulatory Transparency Project featured former U.S. Patent and Trademark Office (USPTO) Directors Andrei Iancu and David Kappos, as well as Duke University Professor of Law and former USPTO Administrator of the Office of External Affairs Arti Rai, discussing the proposal to the World Trade Organization (WTO) to waive IP rights under the Trade-Related aspects of Intellectual Property Rights (TRIPS) Agreement for certain COVID-19 technologies. While all three panelists agreed that the IP waiver discussion has become a distraction that will not solve the fundamental problems, Iancu and Kappos were especially passionate that the precedent set by the U.S. government’s decision to back the proposal could do very real harm, rather than good.

The value of intangible assets has reached staggering levels. By some estimates, as much as 90% of S&P valuation is attributed to intangible assets. With this increase in intangible assets valuation, companies and employees have become mindful of the need to extract value wherever possible. Still, for a variety of reasons the role of IP Manager can be difficult, with…

Former U.S. Patent and Trademark Office (USPTO) Directors Andrei Iancu and David Kappos, and former Secretary of Commerce Gary Locke, today released a White Paper calling the Biden Administration’s decision to support a waiver of intellectual property protections for COVID-19-related technologies under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “strategic folly.” The report was produced by the Center for Strategic and International Studies (CSIS). In the paper, titled “The Shot Heard around the World”, the three officials, two of whom served under the Obama Administration, explained that the United States must indeed ramp up its efforts to improve vaccine diplomacy and to distribute more vaccines globally, but that “[w]aiving IP protections would not lead to the manufacture of a single additional dose of a vaccine.” Instead, they proposed a number of alternative solutions to solve the “real problems.”

During a hearing of the Senate Judiciary Committee’s IP Subcommittee today, Senators Chris Coons (D-DE) and Mazie Hirono (D-HI) were the only senators present to question the Pride in Patent Ownership Act’s (PPOA’s) approach to penalizing patent owners who fail to record accurate ownership information within 90 days after the issuance date. The hearing included testimony from four witnesses on the topic of the PPOA introduced by Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) in September. Leahy explained in his introduction that the same fundamental principle of disclosure that underpins issuance of a patent should extend to patent ownership information. There is presently no requirement that ownership information be publicly available after a patent issues.

The extreme uncertainty that U.S. patent eligibility “validity goulash” jurisprudence has caused is wreaking havoc on inventors, especially those working on emerging technologies. It is also hindering patent owners’ ability to enforce their property rights, investment and licensing deal-making, and giving China advantages in global competitiveness. And it’s likely to get worse before it gets better. Those were takeaways from the Eagle Forum Education & Legal Defense Fund’s (EFELDF) “The Sorry State of Patentability: ‘Anything Under the Sun Made by Man’ No More” program in Washington, D.C. The September 29 event’s panelists considered patent eligibility from the Chakrabarty decision, which ruled a manmade living microorganism was patent-eligible, to dubious, damaging, judicially-created exceptions in such cases as Bilski, Mayo, Alice, Myriad and American Axle. The participants made painfully clear that the Alice-Mayo Framework doesn’t work and course correction is long overdue.

Day one of IPWatchdog LIVE 2021 in Dallas, Texas, kicked off on Sunday, September 12, with a fireside chat between David Henry of sponsor Gray Reed and Judge Alan Albright of the United States’ most high-profile district patent court; panels on patent monetization and the Patent Trial and Appeal Board (PTAB) post-Arthrex; and IPWatchdog’s first ever Paul Michel Award, which went to David Kappos of Cravath Swaine & Moore.

The second day of IPWatchdog’s PTAB Masters™ 2021: “Winning at the PTAB” featured a keynote interview with former U.S. Patent and Trademark Office (USPTO) Director David Kappos, who was at the helm of the agency when the America Invents Act (AIA) was passed. As part of the AIA, Kappos was tasked with developing rules to implement the Patent Trial and Appeal Board (PTAB) and related post grant proceedings, and was chiefly focused on adhering to the unprecedented timelines set for those proceedings in the AIA. “The PTO had never been given strict timelines before,” explained Kappos. “I felt the gravity; I thought, ‘if the public is going to respect the PTO and patents, we have to get on top of the timeframes.’ [I told my team] the goal is going to be to implement within the timeframes 100% of the time.”

On day one of IPWatchdog’s SEP2020, keynote speaker David Kappos told IPWatchdog President and CEO Gene Quinn that the IP community should not panic about what a Biden administration might mean for standard essential patents (SEPs), or IP more broadly. “I have reason to believe we could see a positive continuation of what we’ve seen in recent years,” Kappos said. “President-Elect Biden comes from a background where he under[stands] IP. I worked with him on IP issues under the first Obama administration and he demonstrated an appreciation for the balance that involves intellectual property. He comes from a state – Delaware – that means business about IP, with a strong specialty chemicals industry in that state, and a strong patent jurisprudence.” Additionally, Biden would have people like Senator Chris Coons (D-DE), who has been “an extremely strong advocate for strong intellectual property,” around him. “I have a tremendous faith in [Coons] as a force for making sure we continue going in the right direction,” Kappos added.

Later this year (likely in October), the United Kingdom’s highest court will hear arguments on questions arising in two disputes concerning standard essential patents (SEPs). The UK Supreme Court has agreed to hear appeals in Unwired Planet International Ltd and another v Huawei Technologies (UK) Co Ltd and another UKSC 2018/0214 and the joined cases Huawei Technologies Co Ltd and another v Conversant Wireless Licensing SARL UKSC 2019/0041 and ZTE Corporation and another v Conversant Wireless Licensing SARL UKSC 2019/0042. The arguments are likely to focus on one question: can a national court impose a global license in SEP cases? The closely watched appeal will be the culmination of years of litigation between the parties. In the Unwired Planet case, Mr. Justice Birss of the High Court heard five trials on the validity and infringement/essentiality of Unwired Planet’s patents. In April 2017, he then gave a mammoth judgment determining what a fair, reasonable and non-discriminatory (FRAND) license would be, and setting royalty rates. Critically, he found that only a worldwide license would be FRAND in the circumstances of this case. The England and Wales Court of Appeal upheld this conclusion, in a judgment in October 2018. The Supreme Court will likely sit in a five-judge panel in a hearing that will last about two days and will be live streamed on its website (the date and panel details have not been confirmed yet). It will hand down judgment later this year or early in 2020. (Ironically, patent specialist Lord Kitchin is a member of the Supreme Court but will not be sitting in this case as it is his own judgment that is under appeal.) You might have thought that—after decades of legal debate and academic writing, dozens of judgments addressing questions such as what constitutes a FRAND license and what are reasonable royalties, and extensive discussions between technology companies—the questions around SEPs would be close to being resolved. But that is far from the case. The outcome of the UK Supreme Court hearing, for instance, will have an impact on negotiations between owners of SEP portfolios and implementers worldwide, at a time when standards are set to become critical to many more industries.