AUTM’s Report Breaks Through the Fog on the Hill

Despite its Alphabet’s (Google) motto “Don’t be evil”, the EU has just tagged them with a 200+ billion dollar fine for abusively using their search service to prioritize preferred listings .

Like the other four giant digital platforms whose wealth, power and data enormity are invitations to abuse their virtually users, Google will dispute the EU fine (and its additional order giving Google 90 days to present their plan to reliably clean up their act)

Today’s Report

On its surface, this news item may be of remote interest to TTO’s and US patent holders. But as foreign venues clamp down on big tech their need to maintain bottom-line growth may heighten their abusive conduct here in the US. US Pro-patent interests are painfully familiar with the political clout of the big tech oligopoly. Will the US follow EU’s lead? So far Congress and SCOTUS are allowing themselves to be persuaded by big tech’s words, not their deeds.
At AUTM’s excellent presentation before a standing room only crowd of Hill staffers yesterday, Steve Sasalka referenced the US Chamber’s recent US 10th place world rating of patent strength. This is the result of recent anti-patent activities by Congress, the Courts, and the past administration. The AUTM panel outlined the latest reports commissioned by AUTM and BIO showing the economic contributions of research universities. Steve was flanked by two startup panelists whose operating technology was based on academic research. Both were quiet, straight forward entrepreneurs, clearly not Hill advocates and were thus very persuasive. One of them startled this listener however when with calm and matter-of-fact earnestness he said that Europe was now a preferred patent venue over the US.

Continue reading AUTM’s Report Breaks Through the Fog on the Hill

A Busy Day

There is much to report today.  We will cover it as efficiently as possible.

TV talk show hosts and newscasters often appreciatively refer to their repeat guests as “friends of the show.” As it turns out Bayh-Dole has put on an impressive economic show over recent years. Now there are fresh numbers to prove it. I am sure readers would agree that the 36 yearlong B-D show’s indispensable and longest serving “friend of the show” is Joe Allen. In his IPWatchdog article today (see below), Joe lays out the recent new statistics you and your congressional delegation need to see. B-D was enacted with bi-partisan sponsorship and support. Because its public-private inventor/investor partnership commercialization dynamic is mainstream Republican in nature, its continued bi-partisan support is assured but only if R&D funding continues and otherwise uninvestable but needed basic research can be converted through private investment into jobs and economic development. His excellent article explains why congressional proposals to reduce R&D funding of basic research while weakening patent strength contradict common sense.

Three other notable links also are significant.

The excerpt below draws on a recent Techcrunch article confirming that China’s recent ascendency has made it a patent “powerhouse.”

“China is not only taking the spotlight in strong defense of global markets and free trade, filling a vacuum left by retreating Western capitalist democracies, China is quickly becoming a (if not the) global leader in intellectual property protection and enforcement. And there too, just as Western democracies (especially the United States) have grown increasingly skeptical of the value of intellectual property and have weakened protection and enforcement, China has been steadily advancing its own intellectual property system and the protected assets of its companies and citizens.”

The third significant piece is a recent Reuters article recounting the continuing conflict between SCOTUS and the CAFC which to no one’s surprise is adding increased uncertainty to patents’ predictable reliability. The fourth is another excellent IPWatchdog post that pointedly pins the efficient infringement tail driving all this court and congressional chaos on Apple’s donkey.

Continue reading A Busy Day

New PTO Director and Returning Patent Property Rights

As everyone not pinned under a rock or away on an exotic vacation knows by now, SCOTUS has agreed to decide whether PTAB has the constitutional authority to nullify patent rights in a mini-trial process (principally AIA’s IPR). The precise question before the Oil States Court is:

“Whether inter partes review – an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.”

Having rejected cert in earlier appeals raising the same issue (including MCM v HP ) experienced observers are speculating and theorizing about the SCOTUS reasons for agreeing over the objections of the Solicitor General to hear it. In a timely letter to Commerce Secretary Wilber Ross, the Licensing Executive Society ( LES) which is ably led by Brian P. O’ Shuaghnnesy advised the Secretary regarding its recommended qualifications appointment of a new PTO Director.The letter enumerated some of the many problems affecting our US patent system including a strong argument for patents as “property.” A few excerpts from the letter are below. We recommend reading it in its entirety.

LES Letter Excerpts:
“Above all, LES recommends appointing a Director dedicated to protecting intellectual property, generally, and patents in particular, as the private property right our nation’s founders envisioned.The founders saw great value in rewarding individuals who toil to bring forth from commonly accessible resources useful products and processes by granting to those individuals an enforceable property right. They recognized that such a property right would, in the fullness of time, work a substantial benefit to the public by encouraging innovation and disclosure.We must honor that philosophy.It contributed substantially to America’s rapid ascendancy from agrarian economy to industrial powerhouse and can be traced to America’s first patent act of 1792.In affording that private property right, we reward and empower the archetypal American innovator, the individual daring to risk all to bring forth the next big thing, and thereby challenge market incumbents who benefit from stasis and the status quo.”

“Commercial development of innovation, and new business formation, demands the prompt and predictable grant of durable property rights, and a reasonable expectation of the enjoyment of quiet title upon issuance. Financing of new enterprises, and the growth of existing ones demands intellectual assets that stand up to challenge, regardless how hose assets are derived or commercialized. American innovators deserve strong, predictable, enforceable intellectual property rights, and that starts at the USPTO. Regrettably, recent changes, both legislative and precedential, have chipped away at US patent rights. Meanwhile, patents issued by other countries are increasingly perceived to be more predictable and enforceable, and thus to have greater value. Investment, and ultimately innovation, will migrate to those environments.” Continue reading New PTO Director and Returning Patent Property Rights

ICT Efficient Infringement Drives Patent Depropertization

In his well-respected IP blog, Patently-O, Dennis Crouch introduced his readers to a draft law journal article by USC Professor Jonathan Barnett entitled, “Has the Academy Led Patent Law Astray? “Introducing his post, Crouch quoted one of Prof. Barnett’s findings regarding what he terms the “depropertization” status of patents in the wake of disruptive Federal Circuit decisions declaring that patent property rights are “public” rights” not private. An excerpt from Prof. Barnett’s draft article’s opening abstract quoted by Crouch (immediately below ). Continue reading ICT Efficient Infringement Drives Patent Depropertization

New Directions for USPTO?

USPTO’s history is aptly described in John White’s excellent IPWatchdog post below. The agency’s recent capture by politics compels its future direction. Pervasive political influence inevitably reflects the IP objectives of better-resourced incumbents, whose use for patents may simply be overstaying their incumbency. Our patent system should encourage dynamic progress, forcing incumbents to be inventive while opening markets to new players. This requires a perceived commitment to a balanced competence that promotes patent reliability not investment-deterring uncertainty.  John White’s post thoughtfully discusses the see-saw environment in which TTO’s implementing Bayh-Dole commercialization has been conducted during the past decade. His recommendations to reestablish the USPTO’s functional proficiency are sound. Continue reading New Directions for USPTO?

A Discussion Well Worth Watching

Recent emotionally-driven but Bayh-Dole destructive proposals for biopharma price control such as “price-based march-in” and the “UN High Level Panel on Medicinal Access “ Report are ably refuted by Joe Allen who  refers us to a recent Intelligence 2 TV Debate during which it was that demonstrated that rational discussion, rather than simply blaming biopharma for increased overall health care cost is likely to lead to more effective cost-containment outcomes. Emotionally targeted intrusions into our Bayh-Dole based life science commercialization process are not only misdirected but can completely undermine our innovation ecosystem, disrupting NIH’s important basic science commercialization mission in the process. As Joe recommends, Blame Big Pharma for Out of Control Health Care Costs  is a debate “well worth watching”  Continue reading A Discussion Well Worth Watching