Posts Tagged: "innovation"

SCOTUS Kicks Patent Eligibility Cases to the Curb in Last Move of the Term

The U.S. Supreme Court has denied certiorari in American Axle v. Neapco Holdings, Inc., leaving it up to Congress and the U.S. Patent and Trademark Office (USPTO) to restore any semblance of clarity on U.S. patent eligibility law for now. Many expected that the Court would grant the petition after the U.S. Solicitor General in May recommended granting review. The SG’s brief said that inventions like the one at issue in American Axle have “[h]istorically…long been viewed as paradigmatic examples of the ‘arts’ or ‘processes’ that may receive patent protection if other statutory criteria are satisfied” and that the U.S. Court of Appeals for the Federal Circuit “erred in reading this Court’s precedents to dictate a contrary conclusion.”

USPTO Expedited Processes for Examination and the New Petition to Make Special for Climate Change Inventions

The United States Patent and Trademark Office (USPTO) has a massive backlog of patent applications (typically in the hundreds of thousands). Indeed, the average wait for patent applicants to receive any substantive response from the USPTO is 19.4 months, and the wait is growing. (See chart below). Because of this situation, there has been a need for patent applicants to accelerate the process. The USPTO has obliged and provides several options discussed here for patent applicants to consider.

USPTO Report Underscores Split on State of U.S. Patent Eligibility Jurisprudence

The U.S. Patent and Trademark Office (USPTO) has published its study on patent eligibility jurisprudence in response to a March 2021 request from Senators Thom Tillis (R-NC), Mazie Hirono (D-HI), Tom Cotton (R-AR) and Chris Coons (D-DE). The study, titled “Patent eligible subject matter: Public views on the current jurisprudence in the United States,” is based on more than 140 comments received following a USPTO request of July 9, 2021, and unsurprisingly concluded that many (mostly larger) high-tech and computer-related companies like the current state of the law; life sciences, startups and SMEs do not; but everyone agrees that consistency, clarity and predictability are needed. The study did not make any recommendations, and indicated that the Office will be continuing to solicit feedback via listening sessions and written comments and that it is also broadening the scope of stakeholders it reaches out to.

This Week in Washington IP: Potential Impacts of the Copyright Claims Board, Developments in AI Tech and the USPTO’s Inaugural AI/ET Partnership Meeting

This week in Washington IP news, subcommittee hearings at the U.S. House of Representatives will explore the leading role that Michigan has taken in addressing cybersecurity risks in state and local governments, as well as ways to promote data privacy despite the growth of biometric tracking systems. Elsewhere, the Hudson Institute takes a closer look at the background and potential impacts of small claims for copyright infringement filed at the recently established Copyright Claims Board, while the U.S. Patent and Trademark Office hosts the inaugural meeting of the Artificial Intelligence and Emerging Technologies Partnership Series. 

The TRIPS Waiver: What Does it Mean to Change the Rules of the Game?

A terrible idea – wayward and ill-conceived, criticized by all economic, political and geopolitical fronts – has come to fruition. The World Trade Organization’s (WTO) TRIPs waiver on patents related to COVID-19 vaccines will disincentivize the entire industry from investing in vaccine production. To understand what happens next, let’s understand history first.

Tillis Blasts FDA for Refusing to Respond on Drug Patent Data Study

Senator Thom Tillis yesterday wrote to Food and Drug Administration (FDA) Commissioner Dr. Robert Califf, asking for a third time that the FDA conduct “an independent assessment and analysis of the sources and data that are being relied upon by those advocating for patent-based solutions to drug pricing.” Tillis expressed his frustration with the lack of response thus far, explaining that no formal reply has yet been received despite his first letter being sent in January 2022, and calling it “unacceptable” that the FDA apparently “refuses to reply to emails or to engage.”

‘In Good Hands’: As Hirshfeld Reflects on His Long Career, Vidal Preps for USPTO’s Future

U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal and outgoing Acting Deputy Director Drew Hirshfeld joined IPWatchdog’s CEO and Founder Gene Quinn today to discuss Hirshfeld’s nearly 30-year career with the Office, as well as Vidal’s philosophy as she embarks on her journey as the new Director. Vidal emphasized the importance of dialogue in shaping USPTO practices and processes but said she also will not wait around indefinitely on input over doing “what’s right for the country.” She said: “We will get feedback [but] that’s not going to stop us from acting.” Hirshfeld, who spoke with Quinn on his last day in office, joined the USPTO in 1994.

Juno Petition Asks SCOTUS to Clarify Written Description Standard

Juno Therapeutics last week petitioned the U.S. Supreme Court, asking it to review an August 2021 decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) that reversed a jury verdict for Juno and Sloan Kettering Institute for Cancer Research, wiping out a $1.2 billion judgment for the entities. The CAFC found that the jury’s verdict with respect to written description was not supported by substantial evidence.

This Week in Washington IP: IPWatchdog Hosts Conversation with Director Vidal; Congress to Discuss Improving Predictability at the PTAB; and Mitigating Risks in New Technologies

This week in Washington IP news and events, both the Senate and the House of Representatives hold hearings looking at various aspects of the Patent Trial and Appeal Board (PTAB), including its impact on small businesses as well as ways that predictability and fairness in PTAB proceedings can be restored by Congress. Elsewhere, the American Enterprise Institute explores the current state of the debate over a waiver of international IP rights for COVID-19 vaccines, and IPWatchdog’s President and CEO Gene Quinn hosts a conversation with outgoing USPTO Commissioner of Patents Drew Hirshfeld and recently confirmed USPTO Director Kathi Vidal.

WTO Announces COVID Vaccine Waiver Deal That Virtually No One Wants

Following a week of round-the-clock deliberations, the World Trade Organization (WTO) this morning announced a deal on waiver of IP rights for COVID-19 vaccine technologies under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The final text has made almost no one happy and largely mirrors the draft text going into negotiations, with a few key changes. With respect to open questions in the draft text, the final agreement indicates that all developing country WTO Members will be considered eligible to take advantage of the waiver, but that those with “existing capacity to manufacture COVID-19 vaccines are encouraged to make a binding commitment not to avail themselves of this Decision.” This language is primarily targeted at China, which has publicly stated that it would not use the waiver provision but had objected to language based on percentage of global vaccine exports that would have categorically excluded it. The draft text had encouraged members with vaccine export capabilities to opt out rather than to make a binding commitment.

Kudos to USPTO, DOJ, NIST for Abandoning a Bad Draft, but Future Remains Murky for SEP Holders

In a recent surprise decision, the U.S. Department of Justice (DOJ), U.S. Patent and Trademark Office, and the National Institute of Standards and Technology officially withdrew their 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments and declined to advance an alternative policy statement as a replacement. While the withdrawal of the 2019 policy statement was seen as a foregone conclusion (given the far more SEP-restrictive nature of a December 2021 draft policy statement (DPS) circulated by the agencies), moving forward without any guidance was not on anyone’s DOJ policy bingo card for 2022. The slim guidance that this withdrawal announcement does provide, however, paints a murky picture for the ability of SEP holders to obtain injunctive relief.

‘Sacrifices’: PTAB Reform Act Would Limit Fintiv Denials

Senators Patrick Leahy (D-VT), John Cornyn (R-TX) and Thom Tillis (R-NC) today introduced the Patent Trial and Appeal Board (PTAB) Reform Act of 2022, which is meant to tackle gamesmanship at the PTAB. In April, Senators Leahy and Tillis penned an op-ed that announced such a bill would be introduced “in the coming days”, but it never materialized. The bill makes a number of key changes to PTAB procedures, including explaining that “the right to appeal shall extend at least to any dissatisfied party that reasonably expects that another person will assert estoppel against the party under section 325(e) as a result of the decision.”

Drug Patent Thicket Letter from U.S. Senators to Vidal Seeks Reforms on Continuation Patent Filings

On June 8, a letter signed by a bipartisan group of U.S. senators was sent to U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal voicing concerns over the anti-competitive impacts of so-called “patent thickets,” especially in the drug industry. The senators’ letter urged Director Vidal to address issues of large numbers of patents granted to cover various aspects of a single pharmaceutical treatment, “primarily made up of continuation patents.” The letter, signed by Senators Patrick Leahy (D-VT), John Cornyn (R-TX), Richard Blumenthal (D-CT), Susan Collins (R-ME), Amy Klobuchar (D-MN) and Mike Braun (R-IL), advances a few claims about continuation filings that don’t come from any clear source.

The Bayh-Dole System Just Keeps Rollin’ Along – Despite Attempts to Throw it Off Track

How about some good economic news? That’s in short supply these days as the nation teeters on the brink of recession, driven by raging inflation and skyrocketing gas prices. But in good times and bad, our technology transfer system created by the Bayh-Dole Act just keeps chugging along. A just released study by the Biotechnology Innovation Organization (BIO) and AUTM, which represents the academic technology management profession, shows that academic patent licensing contributed up to $1.9 trillion to the U.S. economy while supporting 6.5 million jobs between 1996 – 2020. Even more impressively, this impact increased substantially since the last survey was released three years ago. That showed an economic impact of $1.7 trillion with 5.9 million jobs supported.

Vaccine Access Advocacy Groups Speak Out as COVID IP Waiver Talks Heat Up

The People’s Vaccine Alliance issued a statement today, one day before the World Trade Organization’s 12th Ministerial Conference is set to end, accusing the United Kingdom and Switzerland of being “major blockers of the TRIPS waiver for twenty months while millions have died without access to COVID-19 vaccines.” Anna Marriott, Policy Lead at the People’s Vaccine Alliance and Health Policy Manager at Oxfam, said the two countries “have repeatedly disrupted negotiations using the amendment process to ensure that any text is difficult to use or implement” and added: “It would be totally false for rich countries to shift the blame for the current state of TRIPS negotiations onto anybody else.”