Posts Tagged: "Patent Reform"

Judge Michel, Panelists Contemplate the CAFC Past, Present and Future on Day Two of CON2020

Headlining day two of IPWatchdog’s CON2020 was Retired U.S. Court of Appeals for the Federal Circuit (CAFC) Chief Judge Paul Michel, who offered attendees 12 “perspectives” on the present-day Federal Circuit to provide context for some of the Court’s current problems. Ultimately, said Michel, these problems need to be fixed via legislation, not the courts, and the key to speeding up that legislative process is for individuals and companies to become involved and proactively advocate for patent reform at the local level.

Facilitating Innovation to Fight Coronavirus Act— Legislation That’s a Mixed Bag

Draft legislation has emerged that ostensibly would boost rapid innovation to combat the coronavirus. Bottom line: The bill is a mixed bag with a lot of questions… The Facilitating Innovation to Fight Coronavirus Act appears to be an attempt to bring any and all viable medical inventions to bear, as quickly as possible, in our fight to defeat COVID-19, which is absolutely to be commended. Despite attempts to mitigate the harm that outright eminent domain on patent rights (vigorously advocated by some) would certainly cause, the legislation needs more work.

Judge Paul Michel to Patent Masters Attendees: It’s Time to Wake Up to Preserve Our Patent System

Retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit Paul Michel told registrants of IPWatchdog’s Virtual Patent Masters program taking place today  that the U.S. patent system has been “weakened to the point of being dysfunctional.” This dysfunction has been especially harmful to small businesses and startups, as well as to innovation in the life sciences industry—which we need now more than ever. Asked by IPWatchdog CEO and Founder Gene Quinn whether the coronavirus pandemic may be a wakeup call to those in power about the importance of incentivizing innovation in the life sciences area, Judge Michel noted that experts in the vaccine industry have indicated that China now dominates vaccine research and production. “The current circumstances may shift the thinking of policy makers quite suddenly and quite far,” Michel said. “We definitely are crimping the human health efforts for prevention and cure of symptoms. Let’s hope this really is a wakeup call for our leaders.”

Function and Structure in Computers: A Stakeholder’s View

As an independent inventor, I am greatly concerned about the new proposed Section 112(f) wording related to “functional claiming” that was put forward as part of the fix for patent eligibility law. While the bill is on the back burner for now, lawmakers have stated their desire to revive it. In my mind it is part of a continuing effort to prevent inventors of computer-implemented inventions from experiencing smooth sailing in patent prosecution and patent assertion. A description of what computers do and how they “logically” work has a close relationship with its physical structure. These aspects are closely interwoven and largely equivalent. Executing a computer operation means that physical circuits are activated. A computer operation or function is not a disembodied occurrence. An instruction executed by a computer is a rapid configuration/activation of one or more (usually electrical) circuits.

A Look at the Inventor Rights Act: Restoring Injunctive Relief and Immunizing Inventors Against the PTAB

In mid-December 2019, Congressmen Danny Davis (D-IL) and Paul Gosar (R-AZ) introduced the Inventor Rights Act of 2019 into the House of Representatives. If passed, the bill would do much to reestablish strong patent protection rights for inventors who own their own patents, giving them an opportunity to opt out of validity trials at the Patent Trial and Appeal Board (PTAB) while also undoing many of the harmful effects of U.S. Supreme Court decisions such as TC Heartland and eBay. While the Inventor Rights Act is directed at a subset of patent owners feeling the brunt of changes to the patent system wrought by Congress and the federal judiciary over more than a decade, the bill does go a long way in correcting the situation for those individual inventors who are likely to have the fewest resources to enforce their patent rights.

A Window is Open to Save U.S. Patents—Don’t Let it Slam Shut

There is a window open for legislative action on patent reform, and the innovator community is blowing it. Google fired its lobbyists in Washington, D.C., and then rehired all new lobbyists with an antitrust and economic background. Meanwhile, the Trump Administration has held roundtable talks about how to combat counterfeits in online marketplaces, which have been thinly veiled forums asking what, if anything, the government can do to punish Amazon for rampant counterfeits. Facebook has few friends in Washington, D.C. after the last election and its privacy issues, and its recent quarterly report shows expenses significantly up, that revenue growth slowed significantly and the CFO suggests that is likely to continue into the future. The time is right for a legislative fix for the patent eligibility crisis facing real innovators in the life sciences and software industries. There is a unique opportunity for a legislative fix for 101, with many of those who have favored a weakened patent system no longer focused on the issue the way they once were, and partners in the Senate IP Subcommittee who actually, truly understand patents, the patent system and innovation.

Time to Wake Up: Stakeholders Must Compromise to Save the U.S. Patent System

Things are bad for many innovators and there is little hope for improvement on the foreseeable horizon. Despite the best efforts of Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE), efforts to reform America’s patent system for the better have stalled to the point that the Senate IP Subcommittee is moving on from patent matters and will focus on copyright reform throughout 2020. “Given the reasonable concerns that have been expressed about the draft as well as the practical realities of the difficulty of passing legislation, absent stakeholder consensus I don’t see a path forward for producing a bill—much less steering it to passage—in this Congress,” Senator Tillis told the Intellectual Property Owners Association in an interview published earlier today. Sources tell IPWatchdog that it is not inconceivable that the Subcommittee will steer back toward patent issues – namely patent eligibility reform – but disagreement among the interested constituencies has shelved any hope for patent eligibility reform. Shockingly, the disagreement that has shelved the long-awaited legislative fix for 35 U.S.C. 101 is among those who support reform. It seems the various constituencies that want 101 reform have their own demands and – if you can believe it – would prefer no change to a change that doesn’t give them 100% of what they are seeking.

Changing the Presumption: Shifting U.S. Patent Policy From a ‘Bad Actor’ to ‘Rational Actor’ Model (Part II of II)

In Part I of this article, we discussed the underpinnings of U.S. patent policy today: the fundamental assumption that our patent problems stem from a bad actor (patent troll) that takes advantage of the system. Based on this ideological premise, Congress and the Judiciary have structured patent policy to prevent this bad actor from taking advantage of the system, i.e., increasing enforcement hurdles to deter the bad actor. Rather than helping, this policy has led to the systemic weakening of U.S. patent rights over the past decade+ – so much so that it has undermined the United States as a viable jurisdiction to enforce patent rights. Here in Part II, we’ll discuss how the ideology of the bad actor came to be, how a rational actor model provides a more realistic framework, and how we can use economic underpinnings of a rational actor to create an economically rooted patent policy.

Changing the Presumption: Shifting U.S. Patent Policy From a ‘Bad Actor’ to ‘Rational Actor’ Model (Part I of II)

Since the Supreme Court’s Alice decision in 2014, the Judiciary’s development of 101 law has caused such an upheaval, Congress may need to intervene. In a July 2018 joint position paper entitled “Congress Must Remedy Uncertainty in 35 U.S.C. §101 and Return Balance to the U.S. Patent System,” the American Bar Association’s IP Law section, the IP Owner’s Association, and the American Intellectual Property Law Association contended the “Supreme Court’s jurisprudence has injected significant ambiguity into the eligibility determination . . . .” and there is now “[u]ncertainty about what types of inventions qualify at the most basic level for patenting.” This ambiguity, however, may be a blessing in disguise. By creating demand for Congress’ intervention, we have an opportunity to change course from the patent policy that has resulted in this mess. But to turn a corner, Congress needs to first understand the shortcomings of its and the Judiciary’s fundamental assumptions that have created this situation. For more than a decade, both Congress and the Judiciary have approached patent policy from a foundational presumption: the inherent problem with our patent system stems from a bad actor.Under a single-minded bad actor presumption, the Judiciary and Congress have framed our patent policy to increase roadblocks for this bad actor, to prevent it from taking advantage of the system. But this presumption has spawned a policy that is contrary to economic principles, and it has systematically weakened and undermined the U.S. patent system. Even if Congress manages to fix 101 law, if it fails to correct its and the Judiciary’s foundational shortcomings regarding patent policy for the past decade+, we’re doomed to repeat mistakes of the past. If, on the other hand, we switch our patent policy principles to a rational actor model, we can begin to understand our patent system from a foundation rooted in economics. More importantly, we can use economic principles to improve our patent system.

One Inventor’s Unsolicited Congressional Testimony Following Arthrex

Since inventors are rarely allowed to participate in patent discussions in Congress, I would like to submit my testimony here. In Arthrex, the Federal Circuit in effect decided that our rights are subordinate to the government, so the government has the authority to giveth them to us or taketh them away. I would like to remind the Federal Circuit, the Supreme Court, and Congress that you are tasked with the honor, privilege and duty to defend our rights. That is the very basis on which you are employed, and you have no function other than that. Our rights preexist you, supersede you, and come from sources that are above your pay grade. They exist as a matter of our birth. You have no legitimate authority to take those rights just because it is inconvenient for the huge multinational corporations that have to now deal with the illegitimate position of owning our rights because so-called judges unconstitutionally took them from us and gave them to those huge corporations.   

This Thanksgiving: What Is the IP Community Thankful For?

This year has included many twists and turns for IP stakeholders, particularly on the patent side. Most recently, the Federal Circuit’s decision in Arthrex has called into question the constitutionality of Patent Trial and Appeal Board decisions, and perhaps the Board itself. Elsewhere, Congress has been—unsuccessfully—attempting to step in and clarify U.S. patent law since early in the year, while the courts have continued to muddy the waters of patent eligibility law. The Federal Trade Commission’s case against Qualcomm, and Judge Lucy Koh’s decision in the case, have further called into question the United States’ ability to compete on the innovation front going forward. And yet, there have been some wins in other areas this year, including at the U.S. Patent and Trademark Office (USPTO), and there remain many reasons to be hopeful about the year ahead. IPWatchdog asked some IP experts to share what they have to be thankful for on the IP front this Thanksgiving, despite all the uncertainty. Hopefully, as those of you who celebrate the holiday enjoy your Thanksgiving dinners, these sentiments will inspire you to be thankful too.

Professors Expand Upon Proposals to Senate IP Subcommittee for Improving Patent Quality

On October 30, the Senate Judiciary Committee’s Subcommittee on Intellectual Property heard from five witnesses on ways to improve patent quality at the United States Patent and Trademark Office (USPTO). The Subcommittee subsequently posed questions to the witnesses, including professors Colleen Chien, R. Polk Wagner, and Melissa Wasserman, to supplement their testimony. Those witnesses have now submitted their responses, which expand upon their various suggestions for improving patent quality.

Mayo Responds to Athena’s High Court Petition: Nothing to Do Here, SCOTUS

Mayo Collaborative Services has filed its brief in opposition to Athena Diagnostics’ petition to the Supreme Court in early October asking the justices to weigh in on whether its patent claims for a method of making a medical diagnosis are patent eligible under Section 101. Eleven amici have weighed in on the case, and the patent community is waiting to see if the High Court will grant the petition and help to solve the Section 101 problem, which has been particularly problematic for the field of medical diagnostics. Mayo states its argument quite simply in the opening sentence of its brief, relying on the Court’s 2012 precedent in Mayo v. Prometheus: “Patent claims directed to a natural law that employ only conventional and routine activities to detect that law are not patent eligible. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 73 (2012). That rule disposes of this case, as the district court, appellate panel, and en banc Federal Circuit each concluded.”

Witnesses Tell House IP Subcommittee, “It’s Up to You” to Fix Arthrex

“It’s up to you to do the right thing and fix this,” said Professor Arti Rai of The Center for Innovation Policy at Duke University School of Law near the end of a hearing on what Congress should do in the wake of the Arthrex decision yesterday. Rai was one of four IP scholars who testified during the hearing of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet; all witnesses seemed to agree that the courts will not fix the problem soon enough to ensure the requisite certainty for U.S. patent owners and businesses, so Congress must act. In Arthrex, the Federal Circuit found that the Patent Trial and Appeal Board’s (PTAB’s) Administrative Patent Judges (APJs) were unconstitutionally appointed and removed the civil service protections they previously were deemed to enjoy—although, as Professor John Duffy of the University of Virginia School of Law pointed out, if the Federal Circuit ruled that the APJs can’t have tenure, that arguably means they never did. “If you go back to Marbury v. Madison, courts don’t actually strike down statutes; they simply say what the law is,” Duffy said.

The Athena Amici Weigh In: Knowles/Addy Brief Dissects Five Critical Inconsistencies in Eligibility Law

On November 1, Meredith Addy of AddyHart P.C. and I submitted an Amici Curiae brief to the U.S. Supreme Court on behalf of Freenome Holdings and New Cures for Cancers in support of the Petition for Certiorari in Athena Diagnostics v. Mayo Collaborative Services. If the Supreme Court does not take this case, it is unlikely to reconsider its decisions on Section 101 of the U.S. patent law. This may be our last gasp judicial effort. The Supreme Court takes cases raising inconsistencies in the law or a circuit split. We knew parties/amici would focus on the Federal Circuit’s “internal circuit split,” so we took a different approach and urged the Court to resolve five critical inconsistencies in the law, summarized below.