Posts Tagged: "policy"

Berkheimer, the Administrative Procedure Act, and PTO Motions to Vacate PTAB § 101 Decisions

After several years in which the U.S. Patent and Trademark Office (PTO) did not seem to have an official position on the issue, and many Patent Trial and Appeal Board (PTAB) panels took a position that was clearly at variance with the Administrative Procedure Act (APA), the PTO recently seems to be acquiescing to principles that the patent bar has been urging for years: (a) the PTO is subject to the same Administrative Procedure Act obligations as any other agency, and therefore cannot make factual findings without substantial evidence, and (b) there’s no carve-out for factual findings underlying § 101 subject matter eligibility rejections.

Enabling Technologies and the Underinvestment Problem

Certain innovations—known as enabling technologies—provide the foundation for progress across a range of industries. Enabling technologies include mobile wireless, the laser, CT scanners, the microprocessor, artificial intelligence, and freight containerization. Such technologies drive wealth creation throughout the economy. However, the difficulties associated with monetizing this type of IP, which I explore in this article, mean that private enterprise tends to underinvest in new enabling technologies. Public policy needs to be more supportive, and firms need to be willing to support more blue-sky projects. As a nation, we are harvesting the fruits of old enabling technologies without investing sufficiently in new ones. We are eating our seed corn.

The U.S. Needs to Make IP Policy a Priority, Now

In the absence of a discernable IP policy, America achieved leadership through laws and courts that supported inventors, and commerce, and that encouraged risk-taking. But the world is now flatter than we could have imagined. If America hopes to remain at the innovation forefront, it needs to rely not only on the ingenuity of its inventors and creators, but on the leadership and vision of government and businesses… Despite the incredible success of several Internet companies — and, some believe, because of it — U.S. IP dominance is in quantifiable decline. Compounding the problem is China, which is now able and willing to fill the void. It has been widely reported that China is a better place than the U.S. and most other nations to obtain patent injunctions and receive a fair hearing in court. Despite this, many U.S. businesses and consumers, impatient with IP rights and cavalier about the impact of IP theft, have come to act with much same attitude the Chinese did before they learned better.

Past as Prologue: Is there Hope for America’s Patent System?

We need to remember that we’ve seen America’s patent system in near complete collapse before. In the 1960s and 1970s the Supreme Court never saw a patent that was valid, which lead to the creation of the United States Court of Appeals for the Federal Circuit. In the 1970s and early 1980s there was great concern that Japan would win the technology future and America would become an also-ran in the burgeoning technological revolution, but that never happened… In the 1980s, a strong patent system was the primary driver for the economic achievements that unleashed American enterprise and allowed the United States to compete on the world stage. It worked in the 1980s to address what was a similarly difficult time, and it will work today.

How Can You Protect Cannabis-based Intellectual Property Under Federal Prohibition?

What started as a curiosity in Colorado and Washington state in 2012 could have gained the momentum of a juggernaut: marijuana legalization. Now with California and other states passing initiatives to fully legalize recreational marijuana use in November 2016, a new multi-billion-dollar industry could be in the offing. Inventors are already at work on new methods of delivering THC in stronger and safer doses… But with cannabis still on the federal DEA Schedule I of controlled substances what can these idea people do to protect their intellectual property?… Ironically, the USTPO has granted a patent on certain cannabis strains to a California biotech institute even as it has disallowed marijuana-related trademarks.