Posts Tagged: "Patent Reform"

Panelists Warn Senate IP Subcommittee Against Drastic Measures on Patent Quality

The Senate Judiciary Committee’s Subcommittee on Intellectual Property, headed by Senator Thom Tillis (R-NC), yesterday heard from five witnesses on ways to improve patent quality at the U.S. Patent and Trademark Office (USPTO). Suggestions ranged from fixing patent eligibility jurisprudence to strengthening efforts on international work sharing, increasing patent application fees, and allotting more time for the examination process. The majority of panelists warned against the dangers of using patent quality as a means to simply block broad swaths of patents that particular industries or entities don’t like, and emphasized that clarifying U.S. patent law would likely go a long way to curbing invalidation rates.

Trading Technologies, ChargePoint Ask High Court for Help with Federal Circuit’s Conflicted Approach to Patent Eligibility

Trading Technologies International, Inc. (TT) has filed a second petition with the U.S. Supreme Court asking it to review a Federal Circuit holding that computer-implemented inventions that do not improve the basic functions of the computer itself are directed to abstract ideas and therefore patent ineligible. The present petition relates to U.S. Patent Nos. 7,685,055 (the “’055 patent”); 7,693,768 (the “’768 patent”); and 7,725,382 (the “’382 patent”). The petition TT filed in September relates to Patent Nos. 7,533,056, 7,212,999, and 7,904,374. The patents are all from the same family as three other patents found patent eligible by the CAFC in 2017. The latest petition argues that the Federal Circuit “simply declined to address conflicting Federal Circuit authority involving the same patent family or the line of other Federal Circuit decisions adopting and applying that authority’s reasoning,” and, therefore, clarification is needed from the High Court. The company’s argument may also get a boost from another petition filed recently appealing the controversial decision in ChargePoint v. Semaconnect, in which the Federal Circuit held that a vehicle charging station was not patent eligible.

To Truly Help the USPTO, Congress Must First Stabilize Patent Law

The Senate Judiciary Committee’s Subcommittee on Intellectual Property is holding a hearing on October 30 to discuss the quality of patents issued by the USPTO. This hearing should be a great opportunity to discuss the current and future challenges facing the USPTO, including modernizing the software tools used by examiners. Unfortunately, the hearing title (“Promoting the Useful Arts: How can Congress prevent the issuance of poor quality patents?”) begins with the premise that there are poor quality patents and perpetuates the unsubstantiated position that past litigation abuse was due to patent quality. Perhaps a better start would have been to call the hearing “Promoting the Useful Arts: How can Congress help the USPTO improve patent examination?”

This Week in Washington IP: NASA’s Moon Mission, Protecting Internet Consumers and Fintech AI Innovations

This week in the nation’s capital, subcommittees in the House of Representatives will hold a series of technology-related hearings focused on online competition in data privacy, artificial intelligence (AI) and cloud computing in the financial sector, Internet consumer protections and NASA’s goal to speed up the return of a manned mission to the moon. The House Investigations Subcommittee will also hold a field hearing outside of D.C. exploring innovation in lead mitigation employed within the state of New Jersey. Elsewhere in D.C., the R Street Institute will discuss their theory on the national security implications of patents, the Brookings Institution will look at the impact of digital technologies on African entrepreneurship and the American Enterprise Institute hosts an event exploring the impact of globalization and robotic innovation on the workforce.

SUCCESS Act Comments Are In: Access, Enforceability, Predictability Concerns Underscored

In May, the USPTO held the first of three hearings prompted by the Study of Underrepresented Classes Chasing Engineering and Science (SUCCESS) Act, which requires the USPTO Director to provide Congress with a report on publicly available patent data on women, minorities, and veterans, and to provide recommendations on how to promote their participation in the patent system. The hearing featured emotional testimony from five inventors, one of whom said she had joined Debtors Anonymous as a result of her patent being invalidated in the Southern District of New York.Responses to the USPTO’s request for written comment on 11 questions the Office had posed have now been published. Eleven organizations and 58 individuals submitted comments, underscoring a range of concerns. While many organizations focused on the need to collect demographic information and increase exposure to STEM education at the K-12 level, a number of other organizations and individuals emphasized the broader issue that was addressed during the hearing in May—that the current patent system is stacked against the individual inventor across demographics.

Clarity Needed on the STRONGER Patents Act’s Approach to Validity Determinations

The “Support Technology and Research for Our Nation’s Growth and Economic Resilience Patents Act of 2019” or the “STRONGER Patents Act of 2019,” currently under consideration as Senate Bill 2082 and House Resolution 3666, poses questions about the types of decisions that would operate to bar inter partes review (IPR) and post-grant review (PGR) of patent claims. The STRONGER Patents Act is an effort to cure some of the perceived infirmities in the U.S. patent system. While prior versions—introduced in 2015 and 2017—were more wide-ranging, the STRONGER Patents Act of 2019 primarily focuses on the availability of injunctive relief and the susceptibility of patents to IPR and PGR. Among other changes, the bill would effectively overrule the Supreme Court’s eBay v. MercExchange decision, require inter partes and post-grant review petitioners to prove invalidity by clear and convincing evidence, permit only one such review of any given patent claim, and purport to finally end the occasional practice of diverting some the USPTO fees from its operations. While much can (and has) been written about the merits of such reforms, the present comment specifically considers the proposed “Priority of Federal Court Validity Determinations.”

A Strange Evolution: The Federal Circuit Has Entered the Theater of the Absurd

Something has happened at the United States Court of Appeals for the Federal Circuit over the past six months. After inching forward in a positive direction on patent eligibility, the entire court, including those judges who had been on the pro-patent eligibility wing of the court, have fallen, slipped, or just given up. The precisely correct characterization remains elusive given the traditional, characteristic and appropriate secrecy that surrounds judicial tribunals. As constitutional officers charged with independently deciding cases, judges take few speaking engagements. Even when they do, they generally speak off the record, and never speak about specific issues or cases that may at some point come before them. In this industry, that means little discussion is had between the bench and bar relating to matters of patent eligibility outside the record, which is itself unfortunate. If the judges of the Federal Circuit would sit through a conference exploring patent eligibility as it applies to the software and biotechnology industries, they would learn much about the uncertainty their decisions are causing. Still, something undeniably has changed.

Blame for the Weakened U.S. Patent System Cannot Be Pinned on the PTAB Alone

It is time to recognize the elephant in the room. The Patent Trial and Appeal Board (PTAB) is broken. And, if we want to be perfectly fair and reasonable in our assessment of the reasons that the PTAB is failing, the blame must trace all the way back to Congress. The creation of three new ways to invalidate patent rights was at best ill-conceived. The manner in which it was done clearly put the finger of infringers on the scale of justice. The creation of an open-ended second window for patents to endlessly be challenged without title ever quieting and ownership ever settling is making a mockery of patent ownership.

Iancu Calls for Section 101 Fix in Address to AIPPI Congress

USPTO Director Andrei Iancu said “something has to be done about” Section 101, as it has been thrown into flux following various U.S. Supreme Court cases, in comments made at the AIPPI Congress in London, United Kingdom last week. Iancu took part in an hour-long discussion with AIPPI Reporter General John Osha, and also took questions from the audience last Monday. He addressed topics including AI, anti-IP sentiment, litigation costs, bad faith trademark filings and gender parity. But it was issues of patent eligibility that were chief on his mind. Iancu said the Administration “has tried to bring consistency and predictability” to Section 101 with its January 2019 guidance, but added: “Courts are independent. They don’t have to follow our guidance. And so far, I have seen no evidence that they want to.”

A Step Forward for the STRONGER Patents Act

The bipartisan STRONGER Patents Act of 2019 took an important step forward last week, as the Senate Judiciary Subcommittee on Intellectual Property held a hearing on the proposed legislation. Senators Tillis and Coons, the Subcommittee’s Chairman and Ranking Member, should be commended for holding the hearing and focusing attention on our patent system’s role in promoting American innovation and job creation. As several of the hearing witnesses made clear in their testimony, our patent system has been dangerously weakened in recent years through a series of judicial, legislative, and administrative changes. These changes have undermined patent rights and made it difficult for inventors to protect their innovations from infringement. Meanwhile, our foreign competitors, including China and Europe, have strengthened their patent rights. This has put us at a competitive disadvantage and helped contribute to a trend of both innovation and venture capital increasingly moving overseas. For example, the U.S. share of global venture capital fell from 66% in 2010 to 40% in 2018, while China’s share increased from 12% to 38% in the same time period. And despite more than a decade of economic growth following the Great Recession of 2007-2009, startup formation has failed to return to its pre-recession levels.

Chief Judge Paul Michel: Patent Reform Progress is Likely, But We Must Stay Focused On the Big Picture

Last week during IPWatchdog’s Patent Masters Symposium, former Federal Circuit Chief Judge Paul Michel sat down with me to discuss the state of the U.S. patent system and best options/ predictions for moving forward. He began by lamenting that “the courts have failed and failed and failed” with flawed rulings such as Helsinn v. Teva, which Michel characterized as “completely illogical”, and Impression Products, Inc. v. Lexmark International, Inc. To boot, the Supreme Court has refused to take any patent eligibility cases, and the Federal Circuit has managed to make the harm and illogic of the SCOTUS rulings even worse, Michel said. In fact, they’ve “expanded on the bad rulings of the SCOTUS.” Part of the problem may lie in a misunderstanding of the true intent of the patent system, according to Michel. “The real point of the patent system is to incentivize innovation, not to encourage creative people. Creative people will create no matter what. Investment is extremely risky and costly—if the incentive to invest shrinks, and there is evidence that it has, we are in trouble.” Below, Michel offers more of his thoughts on the current patent landscape, including what to expect from pending legislation and why he is cautiously optimistic that change is coming soon.

Other Barks & Bites, Friday, September 13: CASE Act Moves Out of Committee, Iancu Discusses SEPs and PTAB Designates Two Decisions as Precedential

This week in Other Barks & Bites: the Federal Circuit issued precedential decisions regarding secondary considerations of non-obviousness, limits to design patents and collateral estoppel of antitrust claims in patent cases; the CASE Act moved out of the House Judiciary Committee towards a floor vote; AIPLA reported increasing prices for trade secret and pharmaceutical patent lawsuits; the PTAB designated a pair of precedential decisions that limit IPR institutions; the DOJ identified two foreign nationals in GE Aviation trade secret case; LeBron James and Ohio State University lost their respective trademark bids; USPTO Director Iancu talked about balancing innovation and preventing hold-up in the SEP context; Google agreed to a $1 billion fine over European tax evasion; and the UKIPO reported lower patent application filing levels for 2018.

Senate Hearing on STRONGER Patents Act Highlights Sharp Split on Injunctive Relief, IPR Fixes

On the afternoon of Wednesday, September 11, the Senate Judiciary Committee’s Subcommittee on Intellectual Property convened a hearing titled Innovation in America: How Congress Can Make Our Patent System STRONGER. The hearing focused on the STRONGER Patents Act, a piece of legislation that has been reintroduced into both houses of Congress, the Senate portion of which has been co-sponsored by the Senate IP Subcommittee’s Ranking Member, Senator Chris Coons (D-DE), fellow Subcommittee members Mazie Hirono (D-HI) and Dick Durbin (D-IL), Judiciary Committee member John Kennedy (R-LA) and Senators Tom Cotton (R-AR) and Kevin Cramer (R-ND). Sources at IPWatchdog’s Patent Masters Symposium this week said that the bill still faces many obstacles to passage. However, according to Senator Coons’ Office, the bill has wide bipartisan support in the House as well. The panel for the hearing was evenly split between supporters and detractors of the proposed law, and most of the discussion focused on the injunctive relief and inter partes review (IPR) provisions of the bill.

This Week on Capitol Hill: STRONGER Patents Act Returns, Maintaining the Lead in Global AI, and Internet Antitrust Issues

This week marks Congress’ return from its August recess and patent owners should be encouraged to see the Senate IP Subcommittee meeting on Wednesday to explore the STRONGER Patents Act in its latest attempt to improve the U.S. patent system. In the House, various subcommittees will focus on FCC broadband map accuracy, advancements in forensic science, and security issues in the nation’s Internet architecture. Outside of Capitol Hill, the Information Technology and Innovation Foundation will hold a pair of events to look at the global race for dominance in artificial intelligence (AI) and the country’s R&D funding agenda, and the Brookings Institution will explore autonomous transportation and service delivery systems, as well as federal data privacy legislation.

Former APJ James Carmichael’s Firm Wins Most IPRs For Patent Owners at PTAB

A recent study by Patexia analyzing the win/loss record of 784 law firms representing patent owners in inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB) found that Carmichael IP had the highest win percentage. The study counted all decisions rendered in the past five years for firms that handled a significant number of IPRs before the Board. Carmichael IP ranked #1 out of the 784 qualifying law firms in the Patexia survey and Carmichael himself ranked third out of 5,000 individual attorneys.