Restoring Sanity to the Patent Landscape

Summarizing IIPC’s recent Capitol Hill Conference IPWatchdog’s Steve Brachmann and Gene Quinn highlight a consensus assertion by its numerous panelist experts. In simple terms they repeatedly asserted that patents are property and were intended in our Constitution to be legally recognized as such. Patents are not privileges granted by sovereign whim as they were in England. That John Locke’s property ownership theory influenced the drafters of our Constitution is universally accepted by constitutional scholars and historians.The Patent Act reflected it. Yet this historic differential between patent property and privilege has been watered down by PTAB and the Federal Circuit (CAFC) in recent decisions holding that patents are simply “public rights”. As such patent holders are not entitled to the basic protections set forth in the Bill of Rights. SCOTUS has declined cert in earlier appeals from Federal Circuit public rights decisions. It is again considering a cert petition in a dispute involving the applicability of Art. III and Art. VII to PTAB’s proceedings.(Oil States Energy Services) Below are excerpts from a typically thorough Watchdog post highlighting the misleading big tech troll narrative’s pernicious influence on patent property rights.

“Although many of the industry insiders at the event held similar opinions on the current state of the U.S. patent system, bringing their message to a mainstream audience has been difficult. Much of this has to do with the “patent troll” narrative that has been forwarded by the efficient infringement lobby. As Sen. Dick Durbin (D-IL) pointed out at a recent Senate judiciary hearing on intellectual property as a driver of innovation, “whoever came up with that phrase [patent troll] should get a special bonus” because it has created a massive mischaracterization of patent owners asserting their rights.”

Continue reading Restoring Sanity to the Patent Landscape

Efficient Infringement Works

Patent reform veterans agree that its proponents’ penetration of DC policy maker “top of mind” with its misleading patent troll narrative is what led SCOTUS and Congress down the primrose path to the twin disasters of eBay and AIA and everything that has followed both. Inundated with Amicus brief and anti-patent administration input, the Courts accepted Justice Kennedy’s uninformed musings in his concurrent opinion where legislating from the bench he effectively erased patents’ presumption of validity while for certain patent holders he replaced patent exclusivity with compulsory licensing. The term’s congressional use, (which the FTC described later as “unhelpful”) enabled busy salons to say “no” to a conjured bogeyman by saying “yes” to comprehensive patent litigation reform too few had understood. The tactic switched the “burden of persuasion” from patent reform’s proponents (where passing any bill belongs) to the bills’ opponents. And when it comes to arcane patent litigation that is a massive burden. C’mon man! There is no “elevator pitch” to explain why anyone running for the next election should not say “yes “to cash-laden Silicon Valley mega techs on a complicated bill the public doesn’t care about. Better to say “no” to predatory trolls. Pro-patent advocates were back-footed long before they climbed Capitol Hill.

“Efficient infringement” is economically explained in a short essay by economist Adam Mossoff. Below are its closing paragraphs. Efficient infringement may never be as effective as the patent troll meme, but it is short, it efficiently describes an economic practice that is far more prevalent than the occasional abuses of the few patent trolls that remain, and it is readily described even on the shortened elevator rides available on the Hill. Most important it is real and succinctly explains why big tech wants patent litigation revision that adversely affects ALL patent holders and not just abusers.  Efficient infringement is economically sound even though it is unlawful and morally reprehensible. Its use is an insurance policy against lesser-resourced patent holder assertion. It is time Congress and the courts said “no” to efficient infringement!

Continue reading Efficient Infringement Works

Signs of Wide Support Life Science Innovation

Our life science innovation ecosystem connects curiosity-driven basic science with its profit-driven private sector development and distribution. Its commercialization bridge has two other keystone components, its R&D on-ramp, and its private sector off-ramp. Politico reports that earlier this week, a high-level White House discussion was held by with President Trump, Secretary Price, Ivanka Trump, Jared Kushner and biomedical experts included drugmakers and leading university and hospital officials. The meeting’s invitation list reflects appropriate recognition of our closely integrated life science innovation ecosystem. Significantly, not discussed were NIH budget cuts to our commercialization bridge’s on-ramp or biopharmaceutical price controls which would undermine its off-ramp. According to NIH’s Francis Collins, the meeting focused on the importance to the economy of a strong U.S. biomedical research enterprise, including the role of government-funded research.

Reading the White House is difficult, but the meeting’s discussants and matters discussed indicate White House understanding of our life science innovation ecosystem’s infrastructure and its full complement of keystone components. Meanwhile on another important front, below are excerpts from a May 10, letter to the WSJ written by Rep.Tom Cole whose support for NIH funding is both critical and matched by his Democratic colleagues. Here is part of what he said about the recent budget action supporting NIH.

“I appreciate the support of my colleagues on the other side of the aisle who also recognize the important work being done by the NIH. This is a nonpartisan issue. The funding we secured for the NIH was supported by every member of the subcommittee and was clearly not a partisan vote. Supporting the pre-eminent institution researching the causes and cures of our country’s most devastating diseases has long been a Republican priority. The devastating human consequences of diseases like Alzheimer’s and cancer are evident to every compassionate person. However, many people fail to recognize the enormous costs these diseases impose on the federal government as well as individual families. Investing money to seek cures is the right thing to do. It is also the smart thing to do. I hope Congress will continue to prioritize the NIH in the coming 2018 fiscal year. Curing diseases can save and improve millions of lives while reducing federal expenditures in Medicaid and Medicare by billions of dollars.” Continue reading Signs of Wide Support Life Science Innovation

Congressional “chits”?

Comedienne Joan Rivers often began her monolog by asking ” Can we talk?”. Her purpose was to prepare her audience for some plain talk about a touchy subject. So channeling Joan, today I am asking readers “Can we talk? ”

Having worked around legislative bodies for almost 50 years, I am appalled when a client (or worse, a lobbyist) says ” Let’s not spend our “chits” on this or that.” It’s as though their congressional member was keeping score by counting your university’s “chits,” (whatever they are ). With the knowledge that TTO research commercialization capacity may not always be your university’s highest priority, it is essential to obtaining federal research grants and therefore critical to your university’s research mission. Commercialization is in danger and thus is well worth discussing with your home state delegation members. We appreciate that the political environments within universities can be complicated. Respectfully, communicating with Congress is not. University leadership frequently views communications with Congress as similarly nuanced and complex. However, it’s not rocket science. Members want to hear from their home state universities.

Henceforth herein I will refer to your university as “you” and the congress person or staffer with whom “you” communicate as “member” or ” she/her.”

She is not keeping score with you. Her reelection’s likelihood is of paramount importance. She is keeping score solely with her next vote count. You are an important and influential constituent. You often are one of the state’s largest employers. You contribute to in-state economic growth and development. You can favorably recognize her with awards, highly visible head-table location and athletic event seating, and you can even name buildings after her. She, therefore, wants to please you as much, and as often as possible. In today’s communication world, virtually every vote leaves a permanent trail and thus requires careful calculation. If that vote happens to coincide with your wishes, she will credit you with having convinced her — whatever her real reason. What members dislike most is being unaware of where you stand on an issue that affects you big or small. They appreciate communication because, a. they are hearing and learning from a credible constituent and, b. they want attention, not neglect. Connecting with them flatters their egos. As long as it is respectful, you cannot too often give your views on any issue that affects you.

Continue reading Congressional “chits”?

Essay Summarizing IPR Concerns Voiced by Panelists at PTO

I recently joined Robert Sterne, Judge Paul Michel, Peter Detkin, Damon C Mateo, Paul Evans and Paul Stone on a panel at the Advanced Patent Law Institute’s annual presentation at the USPTO. Kevin Madigan begins his summary the conference’s opening presentation with the paragraph below. It is a useful overview of a presentation to an audience of advanced patent experts with Director Lee (USPTO) seated in the front row.

“Last month, the United States Patent & Trademark Office (USPTO), along with the University of Texas Law School and Antonin Scalia Law School, George Mason University, hosted the 12th annual Advanced Patent Law Institute in Alexandria, Virginia. The program featured a distinguished panel of patent experts discussing “current issues around patenting, licensing, enforcing, and monetizing patents in the U.S., and look[ing] at what the UK, EU, and China are experiencing and the impact on U.S. patent practice.” Titled The Current Patent Landscape in the US and Abroad and focusing on the economic factors that spur invention, the consensus was that dramatic changes to the US patent system are driving investment in research and development outside the country and threatening the future of American innovation.”

You can read Kevin Madigan’s excellent article in its entirety here.

Miracles Can Happen

In his excellent IPWatchdog post, Bruce Berman discusses Jonathan Taplin’s new book, “Move Fast and Break Things.” In his  post, Bruce sagely states, ” It would be difficult for many people and businesses to live without Amazon, Google, YouTube and Facebook, but it is becoming virtually impossible for those who produce intellectual property to live with them.”  If you missed it, his entire post and Taplin’s book are both worth reading.

But today’s must-read is a joint op-ed the Sunday Washington Post by MIT President Eric Lander and Alphabet’s (Google’s) Eric Schmidt. In their short well-crafted plea to the Trump Administration and Congress, the two Erics praise our nation’s underfunded R&D supported innovation ecosystem, referring to it as, “The Miracle Machine that needs refueling.” They explain the fundamental difference between investable and curiosity-driven basic scientific research saying “its fruits are typically too unpredictable, too far from commercialization and too early to be patentable. That’s where government comes in. While investing in basic research at universities usually doesn’t make sense for business, it has been a winning strategy for our nation. ” They then list its commercialized economic benefits including Google’s 40,000 domestic employees, then close by saying,  “The Miracle Machine has been astoundingly successful. The problem is that too few people — in government or the public — know how it works. As a result, we’ve been letting it fall into disrepair. If we don’t change course and invest in scientific research, we risk losing one of America’s greatest advantages. To our lasting detriment, we may wake up to find the next generation of technologies, industries, medicines, and armaments pioneered elsewhere.”

Continue reading Miracles Can Happen

Experts Explain Troll Narrative Impact

Below is an excellent Steve Brachmann summary of the recent IIPCC conference’s patent experts’ views on the insidious patent troll narrative infecting our nation’s Capitol. Unless this virus is effectively countered by repeated reference to “efficient infringement,” it will continue to bolster in our self-inflicted institutional beat-down of US patents. Tomorrow I will forward a scholarly article authored by economists. For now however here are the comments of the experts. Below is an excerpt.

The pressure to adhere to the patent troll rhetoric was difficult for people to grasp if they don’t live within Silicon Valley, Causevic noted. He noted a conference which he was invited to speak at which changed its title from “Have We Gone Too Far in Weakening Our Patent System?” to “Where Are We in Eradicating Weak Patents?”, a radical shift in focus. “The pressure is very personal,” Causevic said, citing a paper he had worked on which found that company directors were often pressured against telling shareholders to monetize their patents as it could hurt their chances at employment with an anti-patent tech firm later on. As Taylor would add, this pressure affects the “tens of thousands of little companies started by entrepreneurs” in that region which live under a cultural overhang created by the large Silicon Valley entities. Continue reading Experts Explain Troll Narrative Impact

Fundamental Incongruities of PTAB Operations Affect the Integrity of the Patent System

This article appeared first on ipwatchdog.com

The first 100 days of the Trump Administration have now come and gone. So far, they have not revealed much more than the obvious fact that there is a significant disconnect between President Trump’s 4-year re-election objectives and the 2-year re-election timetable of House Republicans. Retaining their seats is job one for both. The President believes that will require Republicans to enact legislation on the issues central to the President’s campaign and the party Platform; issues Republicans have been complaining about over the past eight years.

The mismatched re-election priorities of Republicans can be expected to continue roiling Capitol Hill throughout the remainder of 2017 and likely into 2018. With healthcare and tax reform likely to take up much of the summer oxygen in Washington, DC, and into the fall of 2017 when insurance premium hikes will be announced again, what, if any, signature Republican issues will be addressed remains in significant doubt.

With small ball policy left far behind by both inter-party and intra-party politics, what will the current state of Congressional legislative enactment capacity mean for patent reform? An argument could be made that so much energy will be placed elsewhere that matters of peripheral importance in the greater scheme – like patent reform – will receive no attention. But intellectual property generally and patent policy more specifically tends to be an apolitical issue where ideologues on both sides of the aisle can reach agreement. Without knowing how the cards will fall, and given that those who perpetually seek patent reform are once again working the halls of the Capitol, prudence suggests that those with a pro-patent vision remain ever vigilant.

Last week IPWatchdog.com explained why eBay, Mayo and the creation of the Patent Trial and Appeal Board to hear post-grant challenges to patents were the three most significant legal causes of today’s patent crisis.  The common thread that led to each “event” was a brilliant anti-patent strategy that converted policy maker apathy towards patents and our nation’s innovation ecosystem into a belief that simply stopping a few bad actors by passing comprehensive patent litigation reform would solve any ills.

The patent troll narrative has worked well. Indeed, at a recent hearing of the Senate Judiciary Committee Senator Dick Durbin (D-IL) quipped: “Whoever came up with that phrase should get a special bonus because they manage to mischaracterize anyone who goes to court to assert patent rights as a troll…”

The beauty of the patent troll narrative was it took little time to absorb and instantly painted a pejorative picture in the minds-eye of the listener. It became easy to repeat. Its bumper-sticker simplicity led to widespread usage, which ultimately (and quickly) became accepted as fact without much, if any, critical thought. Most important, the strategy by-passed the arcane complexity of its convoluted subject matter by shifting the burden of Congressional persuasion to its victimized and under-resourced opponents. Politically outmatched from the start – inventors and innovators had, up until this point in our history, always been held in high esteem were overwhelmed. That suddenly changed with the patent troll narrative and inventors became persona non grata, even viewed as evil and villainous. Indeed patent reform’s innate obscurity was its most important ally. Few knew more than the patent troll narrative, so as it was often repeated people unfamiliar with patents on even the most basic level became horrified by the myth the narrative painted.

Over the next 100 days, patent reform’s obscurity may become the enemy of patent reform instead of its ally. After all, if the public isn’t interested in patent reform why should President Trump spend time on the issue? Moreover its proud parent, “efficient infringement,” has now become the enemy of Trump’s conservative, property-devoted base. Patents are property rights as has been recognized by the U.S. Supreme Court for over 100 years and as stated explicitly in the Patent Act. Nevertheless, the patent troll narrative has returned to Capitol Hill. Even with more pro-property right, security-conscious, conservative allies than in previous cycles patent reform opponents, who 500 days ago rallied loudly enough to make HR 9 too controversial for pre-campaign enactment, must rise again.

Expect big tech and its leftist bed-fellows to exert more effort to “de-propertize” patents on Capitol Hill and in the courts. Expect to hear that every patent holder who protects her lawfully established exclusivity by responding to efficient infringement in courts to be called “ambulance chasers.” Expect proponents of reform to mischaracterize patent reform as a step towards tort reform, which is nearly comical given that the tortfeasor in the equation is the party that is trampling on the property rights of patent holders through infringement, which is many times purposeful and willful. Expect lobbyists for Main Street retailers to again be flattered by attention from big shot Silicon Valley lobbyists and support their latest version of the anti-patent, anti-property right patent troll narrative. Expect new academic junk science and more speculation by professorial patent policy “experts.” Expect the USPTO to praise the PTAB’s star-chambered repression of so-called “bad patents.” Expect efficient infringement to continue while the courts and Congress are asked to dither over patent trolls.

We must explain the truth to those who understandably drank the patent troll Kool-Aid and believed that Silicon Valley’s tears for Main Street retailers were real. Efficient infringement’s cheaper, faster, better economics compel its continued deployment. The patent troll narrative has distracted Congress and the courts from seeing how it protects incumbency for our nation’s most dominant big caps by diluting investability in new technology that might one day unseat them. The patent troll narrative’s flaw is that the repressive litigation it supports applies not to a few remaining patent abusers but to ALL patent holders, especially startups who produce the most jobs.

The efficient infringement narrative is no more complicated than the troll narrative. The patent troll narrative just reached the Hill first, which means the story of efficient infringers trampling patent property rights, though perfectly true, has a tougher road given it must not only gain its own traction but it has to undo the damage caused by the misleading patent troll narrative.

To be re-elected Congress may need to focus on less obscure issues this year than patent reform. But if party leaders choose to consider patent reform the bill will be driven by the patent troll narrative, not its content. Pro-patent Senator Chris Coons (D-DE) has wisely reminded us that Congress likes to learn through stories. Patent reform’s proponents will again bypass content explanations by repeating the patent troll narrative. Pro-patent opponents can respond with their own efficient infringement narrative. Let proponents then explain the contents of any bill in simple, easy to understand terms. Let us work to put a face on efficient infringement, which has ruined so many inventors who have seen Silicon Valley giants make so many millions of dollars infringing patents after taking technology originally invented by individuals and small start-up businesses who never had a chance.

 

Patents are Property

As usual Paul Morinville, (joined this time by his good colleagues) is right-on. State universities and their affiliates have been given a “get out of PTAB card ” by the University of Florida decision because of their 11th Amendment sovereignty. It may be that other research universities are not so blessed. But the patents as property issue he details affects everyone. Paul’s IPWatchdog piece is, therefore, essential reading for all. The difference between the juridical “liability” and “property” theories is how research universities were punished by eBay in 2006 and ever since. Now its “Public Rights Vs Property Rights,” and that debate not only affects everyone it affects the very survival of our patent system. Paul explains it well enough to help readers tell it to their congressional delegation. To read their excellent and detailed explanation, please visit our IPStrategic.com website.

Doing “What Works” Is Working

Basic science funding was partially restored in this weekend’s deal to avert a government shutdown. But don’t think for a moment that life science commercialization will easily survive the administration’s anti-science budget stance. The fight to stave off R&D starvation has just begun.

Mosquito-borne Zika has no respect for national borders nor will it enjoy a summer recess. New shared development strategy to spread the rising costs and risk of developing much-needed anti-viral drugs has changed the drug development game into a shared enterprise for pharmaceutical companies.  But fresh tactical approaches to vaccine development have not altered the old thinking of price-based B-D march-in crusader KEI’s Jamie Love and his Senate spokesman Bernie Sanders. They objected to an award of shared financial support to vaccine-maker Sanofi to help underwrite two-stage clinical trials that could produce concrete evidence of a potentially safe, effective and investible Zika vaccine by June. If Phase II testing is successful, NIH’s Dr. Fauci says the vaccine’s Phase III trials would require massive support from a yet unnamed drug company partner.

The US Army Office of Research and Technology Applications (ORTA) issued a letter last week reporting that the Army would pay much of this trial’s bill. The letter implied that granting Sanofi an exclusive license was a reasonable and necessary means to harness the capital and expertise needed to win FDA approval for an unproven technology. Sanofi was the only company interested in pursuing this collaborative Phase II research agreement.

Love and Sanders rottenly complained that an exclusive Phase II award might lead later to Sanofi’s charging for the vaccine “whatever astronomical price it wants.”  What Love and Sanders fail to say is how they propose to defend against a baby-maiming virus creeping up our nation’s coast. Worse, what they never seem to understand is that unless this new vaccine’s later stage development can attract private sector investment capital, there will be no such vaccine. Continue reading Doing “What Works” Is Working