Issa et al

Most of us by now are familiar with the Coons Cotton Stronger Patents Act introduced a few weeks ago. If you have not yet caught up, it is a gem. At my Ipstrategic website, there are three levels of pertinent information including a sponsor press release and a summary of its provisions. We will not repeat them here. Suffice it to say that this artfully crafted proposed legislation restores much of the damage to our patent landscape recently inflicted by Congress and the Courts. It also addresses the troll issue in inappropriately targeted manner. The bill has intelligent bi-partisan backing. Until yesterday it had been the sole occupant of the center ring in the congressional patent law circus.

Yesterday Reps. Issa and House Judiciary Goodlatte initiated the Megatech response igniting a backfire in the House with a hearing designed to revive the tired troll narrative. Being in the majority, they selected three anti patent witnesses. Unfortunately for them, the one minority witness was Former Chief Judge Paul Michel whose knowledgeable testimony itself backfired on the Issa’s plan to counter the Senate bill. Judge Michel won the day with his deep understanding of patent law and policy. He made it clear that our patent system is in crisis and that patent restoration legislation must be enacted.

That means we now have to pass a bill over the objections of the incumbent mega techs and their Congressional water carriers. No small challenge! So far, the “politics” of this fight have gone their way. That will continue to be the case. Home state research universities themselves become a credible RESOURCE to their home state congressional delegations, by credibly explaining as Judge Michel did (see below) what is at stake and why it is important. Research universities can and must do so. Here’s why. . .

Continue reading Issa et al

China’s Patent Ascendancy is Helped by House Judiciary.

Today the barons of big tech meet at the White House with President Trump whose understanding of their work and how that work bears on our present global economic leadership and security in this new digital information age is doubtful. But at least he appears to be uncontrollable. For more than a decade tech titans have been dominating our Congress, federal agencies and Supreme Court by spreading their poisonous anti-patent troll narrative among DC patent policy makers. We were reminded of this last week when the “patent troll narrative” (now lingua franca in all Capitol Hill patent discussions) surfaced in a House Judiciary Subcommittee meeting held to examine the impact of on the patent landscape of the Heartland venue decision. Rep. Issa oiled his way through various iterations of the stale troll narrative. He even sniffed about a recent patent suit against Apple. Pro-patent interests had one friendly witness in the person of Adam Mossoff, but the rest were members of the anti-patent chorus led by anti-patent apparatchik Colleen Chien.

Like certain Justices, House members Nadler, Goodlatte and Issa seem shamelessly transfixed by the troll narrative’s trope that our patent system is being destroyed from within by the abusive conduct of patent trolls, when in fact they are destroying it themselves. We hope the same narrative will not be replayed at the White House today. But it is very much alive in key congressional circles. It is equally clear from House Committee bloviating they want to keep it alive in case an opportunity arises enabling them to revive their tech-dictated Innovation Act. They are telling us that any bill that mentions patents will become a House vehicle for their Innovation Act “modular adjustments.” Big Tech’s congressional tub thumpers have waited for years to tack them on as amendments.

What is becoming scary, however, is that we are in the early stages of two tectonic world developments—the new Information Age and the rise of China as a superpower. Our patent system is being destroyed by the troll narrative and its impact on patent policy makers who are themselves destroying it. China is strengthening its patent system with the same dispatch deployed to stake its claim to the South China Sea and fill the Far East trade vacuum ceded by US PP abandonment. We are headed towards a dual superpower world in an evolving digital age. If our patent system cannot cope with the economic and defense demands needed to maintain leadership, China’s patent system will. If our Congress cannot understand what lies ahead, we have to hope our President does.

Continue reading China’s Patent Ascendancy is Helped by House Judiciary.

Items of Interest and Importance

Capitol Hill publication Politico notes today that a letter urging President Trump to lift the hiring freeze at the USPTO argues persuasively that the agency is supported by its users. It also notes that Michelle Lee is likely to be replaced. Both items are important and need no further elaboration from us. Continue reading Items of Interest and Importance

“Landslide Lee” Is Lurking

If the Patent Reform saga has a “Darth Vader villain”, it is able attorney Mark Lemley . Earlier this week, 3000 miles away from his Silicon Valley death star, he realized he was at an “away game” when pro-patent hero former Chief Judge Paul Michel assumed the podium at the Leadership 2017 policy conference at Washington DC’s Newseum and in his keynote speech said,

“Several years ago, it would have been little exaggeration to say that we are facing a challenge. Today we are facing a crisis.”

In another post IPWatchdog’s Gene Quinn reviews the pro-patent positions of other conference speakers whose views reflect the work of pro patent home state universities. Gene reiterates the truth about “efficient infringement” and the need to reestablish patent rights as property not liability rights or post-eBay “public rights” to recover judicially-awarded monetary damages after risky and expensive infringement proceedings that at best result in compulsory licensing.

Sadly while we’re watching a patent system train-wreck in USA, China’s innovation bullet train, freshly loaded with US recruited researchers and hungry venture capitalists is speeding towards a reliable patent system in a huge market. Meanwhile US House Judiciary tub-thumper for ICT mega-techs, “Landslide Lee” Issa is promising to add “modular” HR 9 amendments to the next relevant vehicle bill that comes his way this session. Issa heard from angry inventors during a re-election he barely won in a ballot recount. But he won. He is angry. And he needs to hear more. Our own ‘Darth Vader Lemley” as Gene diplomatically points out, was out-manned on the Leadership DC dais this week. But unless we continue working to save commercialization for federal grant agencies and ourselves, when an opportune bill reaches Issa’s subcommittee desk this session “Landslide Lee” will not be similarly out-manned. See Inconvenient Truth: America no longer fuels the fire of creative genius with the patent system .

Early Stage Innovation’s Chance to Save Itself

Congressional pursuit of HR 9-type comprehensive patent reform seems to have slowed. Maybe inventors, investigators and investors can breathe easy for a while. Or not! Unless universities and others engaged in early stage commercialization can convince Congress now that Bayh-Dole-based commercialization is the bridge created by Congress to connect past and future congressional R&D funding to the public benefits of jobs, growth and medical progress contemplated by its annual R&D appropriation, trouble lies ahead. R&D funding on one side of the commercialization bridge must reliably cross to its public benefit side or Congress will invest its billions elsewhere.
Google was just tagged with a $ 20M patent infringement damages award. Despite AIA’s built-in deterrents, big tech’s efficient infringement business model exposes ICT firms to similar damages. Continue reading Early Stage Innovation’s Chance to Save Itself

Hard Times Ahead

Congressional pursuit of HR 9-type comprehensive patent reform seems to have slowed. Maybe we can all breathe easy for a while. Or not!  Unless universities can convince Congress that Bayh-Dole based commercialization is the key to the growth and medical progress intended by past and future R&D funding, they are targeted for trouble.

Google was just tagged with a $ 20M patent infringement damages award.  Big tech’s efficient infringement business model exposes big ICT firms to similar damages. On a pure cost-benefit basis, the enforcement protection provided by HR 9-type legislation is still compelling to big ICT aggregators. Beyond denying court access to most patent holders, HR-9 reduces the cost of the ICT components they aggregate, which increases their ICT’s share of consumers’ purchase price. Moreover, their past investments in PR-spawned patent trolls, junk science analysis, academic blather and indirect judicial influence are getting stale but haven’t reached their “sell by date”. Big tech has new pressing priorities and they no longer have the president in their thrall, but as long as Reps. Goodlatte and Issa run IP issues in House Judiciary, any IP legislation that comes their way can be converted into all or any part of HR 9. More than one bill may be on the way and in this year’s budget battle R&D funding is in jeopardy. (Read more at Ipstrategic.com)

House Judiciary Chair Goodlatte publicly admitted that recent judicial responses to issues addressed by HR 9 have reduced its urgency. His IP Subcommittee Chair Issa has indicated that the HR 9 issues are more likely to be addressed on a “modular” rather than on a comprehensive basis. Both blame universities for stalling HR 9 after it had earlier passed the House by a vote of 325 to 91. They have said that fixing the venue problem would be considered depending on how it is addressed by the SCOTUS in the now pending Heartland case. Senator Hatch has said that fixing the venue problem should await Heartland but also said however heartland is decided the venue issue needs to be addressed by Congress

Then there’s the Alice/ Mayo controversy outlined and explained in an IPWatchdog post by Manny Schecter.  A number of major IP players including; The American Bar Association’s Section on IP, AIPLA, IPO and PhRMA have expressed the need for a Section101 fix. IPO is already circulating a draft bill. It thus seems highly likely that if and when the House and Senate Judiciary Committees find the time to deal with Alice/Mayo, patent reform will be in play again.

We must use this temporary “lull” to explain to our congressional delegations how Bayh-Dole commercialization is the bridge to the public benefit contemplated by Congress when it annually appropriates $130 bn. to R&D. State budget cuts to universities should alert us to what may happen at the federal level. Budget issues lie at the heart of DC’s current chaos. Deficit hawks are circling like buzzards and every dollar appropriated in the past for R&D has been eye-balled and will be sought by other desperate interests on the congressional chopping block. Listen to William Bonvillain, who directs MIT’s Washington Office;

“Citing federal budget trends, with an expected tax cut and infrastructure spending program as well as a possible dismantling of the Affordable Care Act, William Bonvillian, director of MIT’s Washington office, said that discretionary federal spending is set to be squeezed. That, in turn, can be expected to hit scientific research budgets, he said, and in turn, the federal and university based research community. “There is going to be a challenge” to research and development programs, Bonvillian said. “We’re going to need to tell the story, that R&D is actually a key part of the solution, it’s part of growth. But the challenge this time in telling that story is going to be even greater than usual.”

Research universities must explain to their congressional delegations why R&D must be funded and its Bayh-Dole based commercialization must be protected iso congressional funds already in the pipeline can produce the future jobs and beneficial scientific progress they expected when they voted to support it. And they must do it now, HR 9’s choke-hold on private sector investment leads eventually to reduced congressional R&D appropriations. But in the budget battle now fully underway unless universities actively justify their commercialization of federally- funded R&D, other influential interests on the Hill who care little about scientific study but care a lot about their own survival see R&D’s annual funding as a source to save themselves.

 

Representative Goodlatte’s Patent Reform Planning

By way of follow-up to yesterday’s report on Rep. Goodlatte’s 115th Congress agenda, below are Gene Quinn’s patent litigation reform observations regarding his Wednesday announcement. http://www.ipwatchdog.com/2017/02/01/goodlatte-patent-litigation-reform-copyright-reform/id=77879/

We note that IP Sub-Committee Chair Issa and full Committee Chair Goodlatte have historically and unabashedly carried big IT’s water in the House for years. But because of an apparent diminution of big tech’s White House enthrallment, Reps. Goodlatte and Issa may need to protect other big tech priorities than efficient infringement. Be assured however, that Judiciary Committee leadership will seize every opportunity available during the 115th Congress to insert HR 9 type litigation “reform” into any measure open to such shenanigans. Continue reading Representative Goodlatte’s Patent Reform Planning

Capitol Hill Heuristics

Every day, Hill Members and staff are assailed by lobbyists they know and like whose interests and arguments are opposed. To get to the truth many use Hill heuristics or “rules of thumb” to help them decide which side’s argument to believe. For example, they prefer arguments based on actual narratives to manipulatable numbers. Constituent experiences with an issue in conflict are easy to understand and recall and of course are politically relevant. Recent Hill appearances by inventors already harmed by AIA also have been persuasive. Sometimes it helps to “follow the money”. Which side has the most to gain or lose can provide independent understanding regarding what is really going on. Mr. Issa’s public characterization of university opposition to HR 9 (see earlier post) not only confirms the persuasive power of past direct constituent congressional contact, it can provide valuable insight into the true motivation driving his attachment to the issue. Continue reading Capitol Hill Heuristics

Rep. Issa Publicly Addresses Future Patent Troll Legislation Last Week

Despite recent FTC’s disapproval of its lobbyist use on the Hill, CES dedicated an entire panel last week to “patent trolls”, combining high praise for USOTO Director Michelle Lee with candid commentary from “surprise” visitor (and Lee supporter) House Judiciary IP Sub-Committee Chair Darrell Issa. Mr Issa HR 9’s sponsor and chief congressional tub-thumper last session. Hoping to hide efficient infringement by resuscitating the tired troll “issue”, the panel’s prominence warns us; that Mr. Issa is still smarting from HR 9’s demise last session, that he blames its defeat on universities and BIO, that HR 9 will return this session in “modular” form, and that university “troll-like behavior” is in his crosshairs. A “rough transcription’ of his remarks ( see below) has been recently circulated among pro-patent advocates.  It was forwarded by Dave Winwood. Continue reading Rep. Issa Publicly Addresses Future Patent Troll Legislation Last Week