IP Policy Roundup | Edition 7

Coalition Updates

• On June 1, C4IP Co-Chair Andrei Iancu will serve as a panelist for The Orrin G. Hatch Foundation’s webinar on public policies impacting IP rights. Register to attend here.
• On April 26, C4IP Board Member Judge Kathleen O’Malley (Ret.) published a blog on World IP Day and how IP protections support women inventors, creators, and entrepreneurs.
  • • World Intellectual Property Review also interviewed Judge O’Malley for a story on World IP Day.
• On April 26, C4IP released a statement on World IP Day, which centered on “Women and IP” this year.
  • • “On this World IP Day and beyond, we must take steps to encourage more women to lead in the IP space — because when women inventors win, we all win.”
• On April 26, C4IP submitted final written comments to the U.S. International Trade Commission on Inv. No. 332-596 regarding COVID-19 Diagnostics and Therapeutics: Supply, Demand, and TRIPS Agreement Flexibilities.
  • • “Extensive consultations with relevant experts — and a wealth of data on market dynamics — reveal that extending the current intellectual property waiver on Covid-19 vaccines to diagnostics and therapeutics would prove enormously counterproductive.”
• On April 25, C4IP published a press release announcing Jamie Simpson as our inaugural Chief Policy Officer and Counsel, effective May 1. Jamie previously served as Chief Counsel on the House Judiciary Subcommittee on Courts, IP, and the Internet; Counsel to the Senate Judiciary Committee while on detail from the U.S. Patent and Trademark Office; and Associate Solicitor at the USPTO.
  • • This news was covered by POLITICO Playbook, The Hill, and Law360.
• On April 24, C4IP Board Member Judge Paul Michel (Ret.) published an opinion essay in the International Business Times on U.S.-China tech competitiveness.
  • • “Despite the compelling evidence of increasing harm to our innovation system, nothing was done to revive it. Why not? Certain big-tech companies of immense size, wealth and political heft each spent many millions of dollars, continually blocking reform efforts, all in pursuit of ever-greater profits. They show no concern for the national good, economic and job growth or the national security implications of losing the tech race to China.”
• On April 20, C4IP Co-Chairs David Kappos and Andrei Iancu, along with several other former U.S. officials, sent a letter to the European Commission to raise concerns about draft regulations that threaten U.S. and European innovation, and by extension, the global economy. You can read a press release on the letter here.
  • • “We write to express our shared concerns regarding an apparent pivot in the European Commission’s longstanding intellectual property (IP) policy that threatens European and American innovation leadership, and by extension, European and American economic success and security.”
• On April 20, the Wall Street Journal published an article featuring quotes from C4IP Co-Chair Andrei Iancu on Apple’s abusive patent strategy.
  • • “Andrei Iancu, who stepped down as director of the U.S. Patent and Trademark Office in 2021, said the patent system ‘is tilted in favor of the largest established firms. This is not a coincidence. It’s the result of decades of policy push to implement a variety of policies in the patent system that make it increasingly more difficult to enforce patents.'”
• On April 19, C4IP Board Member Judge Paul Michel (Ret.) published an opinion essay in the Detroit News on the global strengthening of IP rights amid U.S. weakening.
  • • “The genius of our innovation system is its dual reliance on public and private funding. Strong patents create strong investment incentives. Once Congress understands that, then we can recover.”
• On April 18, C4IP Executive Director Frank Cullen published an opinion essay in InsideSources debunking the myth that drug companies are gaming the U.S. patent system.
  • • “Just like inventors in any other sector, drug developers would have little reason to invest in the R&D and clinical trials necessary to make incremental improvements to existing medications if follow-on discoveries couldn’t be patented.”
• On April 17, C4IP hosted a webinar clarifying the purpose of Section 1498(a) of the U.S. Code and how misinterpreting it would decimate American innovation. You can read a transcript and watch a recording of the webinar here.
• On April 14, Representative Kevin Kiley published an opinion essay in Fox News on U.S.-China competitiveness in the technology sector.
  • • “China has singled out intellectual property as key to its long-term goals. For years the CCP has sought to acquire IP through outright theft from U.S. companies, but their strategy is now much more sophisticated.”
• On April 14, C4IP submitted a response to the Centers for Medicare & Medicaid Services’ Solicitation of Comments concerning initial guidance on the Inflation Reduction Act’s Medicare Drug Negotiation Program.
  • • “In effect, under this guidance, the agency would subjectively lower the initial prices for medicines with longer patents and exclusivities. In so doing, CMS would create a significant disincentive for life sciences firms to perform additional research on medicines already approved by the Food and Drug Administration (FDA), thus impeding continued discoveries that benefit patients.”
• On April 10, C4IP co-hosted a roundtable discussion with The Stanford Biodesign Policy Program focused on the role that IP law and policy play in supporting the innovation ecosystem.
• On April 6, C4IP Board Member Judge Paul Michel (Ret.) published an opinion essay in RealClearMarkets arguing that the United States can revitalize startup funding by enforcing strong patent protections.
  • • “Studies of VC investing uniformly demonstrate the same thing: Would-be investors depend on enforceable patent rights to justify the risks inherent in developing new technologies. Most such efforts are expensive and time-consuming, and many fail. Even the successful ones yield consumer-ready products only slowly, after which they may finally start to generate profit.”
• On April 5, former General Counsel for the United States Patent and Trademark Office Nick Matich published an opinion essay in RealClearPolicy arguing that the United States should enforce strong patent infringement remedies to counter Big Tech abuse of the patent system.
  • • “This system gives Big Tech no incentive to avoid infringement, or even pay appropriate compensation when they’re sued. If they litigate they stand a reasonable chance of invalidating the patent, in which case they pay nothing. At worst they pay what they originally owed, but years later. In the meantime, they continue to profit and their smaller competitor may go out of business.”

Media Rundown

• USPTO Event, Celebrating World Intellectual Property Day: The Value of Her IP: On April 25, the U.S. Patent and Trademark Office hosted an event celebrating World Intellectual Property (IP) Day. This year’s theme, “Women and IP: Accelerating innovation and creativity,” emphasizes the impacts of female entrepreneurs, creatives, and inventors. World IP Day occurs annually on April 26. (USPTO, 4/25)
• Federal Trade Commission (FTC), End of Public Comment Period on Proposed Noncompete Agreement Ban: April 19 marked the end of the public comment period regarding the FTC’s proposed ban on all noncompete agreements in the United States. If the FTC decides to outright ban these agreements, it will expose businesses to trade secret theft. (Regulations.gov, 4/19)
• U.S. Senate Committee on the Judiciary Subcommittee on Intellectual Property: On April 18, the Subcommittee on Intellectual Property held a hearing on “foreign competitive threats to American innovation and economic leadership.” A panel of experts spoke to the subcommittee on the need to reimagine America’s current IP strategy. (IPWatchdog, 4/18)
• USPTO Announces Trademarks for Humanity Award: The U.S. Patent and Trademark Office announced that it will begin a new award program titled “Trademarks for Humanity.” This program aims to award trademark owners who “help solve humanitarian challenges,” citing climate change as an example. (USPTO, 4/10)

Fact Check

Claim: On March 29, the International Trade Commission held a hearing on the World Trade Organization’s (WTO) proposed suspension of Covid-19 therapeutic and diagnostic intellectual property rights by expanding the TRIPS waiver.

James Love, director of Knowledge Ecology International, claimed that expanding the waiver would foster increased access to therapeutics and diagnostics — suggesting that there exists a shortage of supply for low-and-middle-income countries.

Correction: There is no intellectual property-based shortage of therapeutics and diagnostics in low-and-middle-income countries. The issue of accessibility has nothing to do with intellectual property, but rather demand. Private-sector pharmaceutical companies have entered into almost 150 public-private collaborations to increase access to therapeutics and diagnostics. In 2022 alone, the global demand for Pfizer’s Paxlovid, a Covid-19 therapeutic, only reached approximately 35% of production capacity.

However, faulty government infrastructure and unreliable distribution sources do pose barriers to more widespread uptake in many low-and-middle-income countries. In fact, governments and non-governmental organizations have only been successful in distributing about one-third of the treatments destined for low-and-middle-income nations.

Love’s claim suggests that the WTO should allow for compulsory licensing, which would essentially strip manufacturers of their intellectual property rights. Rather than increase supply, which already outstrips demand, a compulsory licensing regime will decrease the manufacturers’ ability to produce reliable and safe therapeutics and diagnostics. Already, “An estimated 1 in 10 medical products in low- and middle-income countries is substandard or falsified,” according to the WTO. This issue will only worsen by allowing governments to strip manufacturers of their intellectual property rights and, therefore, the ability to closely monitor the production and distribution of their products.

Bottom Line: This claim is false.

What’s Happening in Congress:

As Democratic and Republican members of Congress continue to weigh legislative priorities for the 118th session, top of mind for those who follow intellectual property policy are:

• The Interagency Patent Coordination and Improvement Act of 2023: In January 2023, Senators Dick Durbin (D-IL), Chris Coons (D-DE), Thom Tillis (R-NC), Chuck Grassley (R-IA) introduced the Interagency Patent Coordination and Improvement Act of 2023. The bill would create an interagency task force to share patent filing information and technical assistance between USPTO and FDA officials. IP experts warn that interagency entanglement could weaken the patent system by inserting officials from multiple federal agencies — without patent law expertise — into the examination process. They submit that it is premature to implement such substantial changes without conducting a thorough evidence-based study.
• Patent Eligibility Restoration Act of 2022: In August 2022, Senator Thom Tillis (R-NC) introduced legislation aimed at restoring patent eligibility for important categories of inventions — including life sciences diagnostics, gene therapies, and artificial intelligence — as well as resolving questions regarding the scope of patent eligibility. An updated version of this legislation is expected to be reintroduced in the 118th Congress.
• STRONG and STRONGER Patents Acts: In his keynote speech for the IPOwners Spring Summit, Senator Chris Coons (D-DE) announced his intention to reintroduce his legislation, previously known as the STRONG Patents Act and the STRONGER Patents Act, as two separate bills. One will reinstate a presumption of irreparable harm once patent infringement is shown, and the other will focus on balancing the process for post-grant PTAB proceedings.

Celebrating American Innovation

Inventor Spotlight

This month, C4IP recognizes Florence Parpart, the stenographer and American inventor who patented the modern refrigeratorand the street sweeper.

Much about Florence Parpart is a mystery, but her inventions have helped to change the daily lives of many across the globe. Born to a New Jersey family in 1873, Parpart was a stenographer for the Eastern Sanitary Street Cleaning Company.

Parpart received her first patent grant on June 7, 1904, for a modern improvement to the street sweeper. Her invention proved to be a large success, garnering nationwide attention within only a few years. The device was not only a huge time and labor saver, but also environmentally conscious. According to the Minnesota Pollution Control Agency, the street sweeper “helps eliminate the number of plastics and litter that end up on the sides of roads and ends up harming local wildlife.”

Just ten years after this groundbreaking invention, Parpart received another breakthrough patent for the electric refrigerator. The modern refrigerator can be found in millions of homes across the globe — with almost 100% of U.S. households having at least one. In fact, approximately 1 in 4 U.S. households have not one but two refrigerators.