Posts Tagged: "Senator Tillis"

Last week, the Electronic Frontier Foundation (EFF) announced that it is launching a campaign against Senator Thom Tillis’ (R-NC) proposed “Patent Eligibility Restoration Act of 2022,” which would effectively abrogate the Supreme Court’s decisions in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S.Ct. 2107 (2013) and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012). The EFF’s post claimed the bill “would tear down some of the public’s only protections from the worst patent abuses.” While many in the patent community welcomed Tillis’ renewed attempt at clarifying U.S. patent eligibility law, others said the bill would create more problems by failing to clearly define terms like “technological” and including language that would be problematic for software patents.

In U.S. government, setting public policy is the sole and exclusive domain of Congress. The laws they pass effectuate the public policy positions that Congress alone has the power to set. In law, words are everything. The precise meaning of the words in law determines whether the public policy is implemented as intended by Congress. Altering the meaning of just one word can change the entire public policy set by Congress, even turning the public policy on its head. Anyone following the debate on patent eligibility can attest to how the Supreme Court’s redefinition of the word “any” in 35 U.S.C. § 101 to have an exception called an “abstract idea” caused a significant public policy change and that change destroyed countless startups, especially those in tech. Senator Tillis’ Patent Eligibility Restoration Act of 2022, S.4734, wrongly puts the courts in charge of defining public policy because it leaves key words completely undefined.

Senator Thom Tillis (R-NC), the Chair of the Senate Judiciary Committee’s Subcommittee on Intellectual Property released a discussion draft copyright reform bill titled the ‘Digital Copyright Act of 2021’ (the discussion draft). The discussion draft, which is intended to bring revolutionary changes to online copyright law, was developed based on recommendations in six hearings of the Subcommittee on Intellectual Property focused on reforming copyright law in the digital environment, two staff briefings, and four extensive Copyright Office studies. This proposed DMCA reform was released in order to solicit comments from stakeholders and other interested parties.

On Tuesday, the Senate Judiciary Committee’s Subcommittee on Intellectual Property convened an oversight hearing of the U.S. Copyright Office featuring testimony from Karyn Temple, the Register of Copyrights and Director of the Copyright Office. Much of the hearing focused on the Office’s efforts to modernize its information technology infrastructure and business processes, although implementation of the recently passed Music Modernization Act (MMA) and new forms of digital piracy were also discussed.

This week in Other Barks & Bites: The Trump Administration’s Final Rule that would have required list prices of drugs to be displayed in television ads is blocked by the U.S. District Court for the District of D.C.; the STRONGER Patents Act is reintroduced into both houses of Congress; the leadership of the Senate IP Subcommittee releases a statement on the splintered Federal Circuit en banc denial in Athena; the U.S. Copyright Office designates the mechanical licensing collective; Huawei is the top earner of Chinese patents thus far in 2019; Intel enters a period of exclusive talks in its wireless patent auction; T-Mobile and Sprint extend their merger deadline; Amazon launches initiative to retrain 100,000 employees for high-tech positions; and major drugmakers ask the Supreme Court to take up a patent case involving functional claiming issues.

Through the first half of June, a series of hearings on the state of patent eligibility in America held by the Senate Intellectual Property Subcommittee rendered a variety of interesting exchanges regarding current U.S. subject matter eligibility under Section 101 relating to various important sectors of the U.S. economy. During the second hearing, Senator Richard Blumenthal (D-CT) talked to panelists regarding his concerns about patent abuses in the pharmaceutical industry. During his period of questioning, Blumenthal grilled witnesses on the subject of whether the expansion of subject matter eligibility that would result from the proposed Section 101 draft text would exacerbate issues related to “patent thicketing,” a process by which drug companies attain large patent portfolios covering various aspects of a single drug formulation. Along with Senators Thom Tillis (R-NC) and Mazie Hirono (D-HI), Senator Blumenthal entered a series of questions for the record to be answered by panelists attending the recent patent eligibility hearings. Although the questions don’t overtly single out the pharmaceutical industry, panelist answers largely indicate that this sector was on most people’s mind while responding.

The first of three scheduled hearings in which the Senate IP Subcommittee will hear testimony from a total of 45 witnesses on the subject of patent eligibility law raised many questions. While some read the proposed draft bill released by Congress last month as clearly overturning AMP v. Myriad, for example, Senator Chris Coons (D-DE), Ranking Member of the Senate IP Subcommittee, said today that was not his intention. In his opening statement, Coons pushed back against an article published on Monday by The Washington Post, which indicated that the proposed draft bill to revise Section 101 would enable the patenting of genes. Coons called the article “significantly misleading” and noted that “our proposal would not change the law to allow a company to patent a gene as it exists in the human body. I believe I speak for the Chairman and myself when I say we do not intend to overrule that holding of the 2013 Myriad decision.” The concerns leading to the Washington Post article arose in recent days, after the American Civil Liberties Union (ACLU) released a statement and held a phone briefing for Congressional staffers claiming that the proposed draft bill would enable the patenting of genes. Sherry Knowles, Principal of Knowles Intellectual Property Strategies and one of the witnesses at today’s hearing, penned a rebuttal of the ACLU’s position that IPWatchdog published on Monday. Knowles spoke in the second panel of today’s hearing and said she hopes the proposed bill would in fact overturn the Myriad decision because “there’s been a dead stop in research in the United States on isolated natural products. The highest public interest is life itself and that has to be the goal of this statute.”

Senators and Representatives Coons, Tillis, Collins, Johnson, and Stivers recently announced in a press release a proposed framework to fix patent eligibility law in the United States. If written as proposed in the draft framework, section 101 may do harm to the patent system. The senators and representatives are now soliciting feedback on the draft framework. They are likely to take additional action on the framework as soon as early this week. Please send the following text with any of your edits to [email protected].

This week in Other Barks & Bites: the Supreme Court asks for the U.S. Solicitor General’s view on whether patents that claim a method of medically treating a patient automatically satisfy Section 101; a jury gives Qualcomm a win in its ongoing patent battle with Apple; the World Intellectual Property Office announces record-breaking totals for international patent applications and cybersquatting actions; Cisco avoids a nearly $60 million damages award at the Federal Circuit; McDonald’s appeals its loss in the EU over its Big Mac trademark; Tesla files trade secret lawsuits against former employees; Peloton faces a copyright suit from music publishers who are seeking $150 million; and Google gets another billion-dollar-plus fine from antitrust regulators in the EU.