IP Policy Roundup | Edition 1

Coalition Updates

• On October 17, Bloomberg Law published an article by C4IP co-chairs David Kappos and Andrei Iancu detailing why “Scapegoating Patents Won’t Lower Drug Prices.”
• On October 13, C4IP board members sent a letter to congressional lawmakers clarifying the merits of the Patent Eligibility Restoration Act of 2022.
• On October 6 and 11, IPWatchdog published Parts I and II of an article series entitled “Presenting the Evidence for Patent Eligibility Reform,” coauthored by C4IP board members David Kappos and Judge Paul Michel (Ret.). The articles discuss the muddled state of patent eligibility law and the negative impacts on innovation.
• On October 6, C4IP Executive Director Frank Cullen published a blog post on the Council’s website celebrating American inventors and creators.
• On September 28, more than 100 friends of C4IP gathered to celebrate its launch. Distinguished guests included Senator Chris Coons (D-DE), Senator Thom Tillis (R-NC), and Representative Thomas Massie (R-KY).

Media Rundown

• USPTO Implements New Guidelines for Trademark Applicants: USPTO announced that, as of December 3, 2022, trademark applicants will have three months — shortened from the current six months — to respond to office actions issued during the examination of an application. Applicants may request a deadline extension for a fee. (USPTO, 10/12)

• Andy Warhol and Prince Headline A Copyright Case Before the Supreme Court: On October 12, the Supreme Court heard arguments as to whether creators should be compensated for original work that’s adapted by others. The court’s determination will affect authors, artists, filmmakers, movie studios, among others. (Associated Press, 10/12)

• IEEE Amends Standards-related Patent Policy: The Institute of Electrical and Electronics Engineers released a revised patent policy modifying various provisions from its 2015 version. Among other changes, the revision relaxes some limits on owners of standard-essential patents (SEPs) — such as those involved with USB, LTE, and Wi-Fi — seeking injunctions to block the sale of infringing products. IEEE’s new policy takes effect January 2023. (Law360, 10/07)

• USPTO Publishes RFC on Continuation and Other Patent Practices: USPTO announced that it is seeking comments on proposed initiatives aimed at “bolstering the robustness and reliability of U.S. patents.” The request for comment will address issues such as “prior art searching, support for claimed subject matter, request for continued examination (RCE) practice, and restriction practice.” (IPWatchdog, 10/03)

• Senator Chris Coons Announces He Will Co-Sponsor Patent Eligibility Restoration Act of 2022: During C4IP’s launch event, Senator Chris Coons (D-DE) announced that he will co-sponsor the Patent Eligibility Restoration Act of 2022. The measure was first introduced by Senator Thom Tillis (R-NC) back in August. (IPWatchdog, 9/28)

• Former U.S. Attorney General Voices Opposition to NHK-Fintiv Ruling: George W. Bush-era Attorney General Michael Mukasey recently voiced support for “undoing the NHK-Fintiv rule.” (WSJ, 9/11) Days later, Judge Paul Michel (Ret.) dismantled Mukasey’s arguments in the same pages, detailing how the Fintiv ruling protects small inventors from abuse by “deep-pocketed rivals.” (WSJ, 9/23)

Fact Check

What’s Happening in Congress:

Patent Eligibility Restoration Act of 2022: In August, Senator Thom Tillis (R-NC) introduced legislation, dubbed the Patent Eligibility Restoration Act of 2022, aimed at restoring patent eligibility for major inventions as well as resolving questions regarding the scope of the patent system. The bill has been read twice and referred to the Committee on the Judiciary. Senator Chris Coons (D-DE) recently announced he would come on as a co-sponsor.

Inside Look on TRIPS

By December 17, the World Trade Organization TRIPS Council is obligated to decide whether to extend the current waiver on Covid-19 vaccines to therapeutics and diagnostics. During recent informal meetings of the Council, South Africa and India remained the most vocal proponents of the expanded waiver. The European Union, the United Kingdom, and the United States have yet to take a position — and, as with the vaccine waiver, the stance adopted by the United States will prove consequential.

C4IP Co-chairs Andrei Iancu and David Kappos — along with Gary Locke, the former secretary of commerce and ambassador to China during the Obama administration — warned against such IP waivers in their co-authored report, “The Shot Heard around the World: The Strategic Imperative of U.S. Covid-19 Vaccine Diplomacy,” last year. They cautioned that stripping vaccine developers of the internationally recognized IP protections underpinning their products and processes “will not lower barriers; it will only create new ones.”

The same rings true for nullifying the IP protections underpinning therapeutics and diagnostics. There are no existing supply shortages — in fact, production now exceeds demand for Covid-19 medicines. Covid-19 therapeutic manufacturers have signed 140 voluntary licensing and manufacturing agreements to increase access to these products. Pfizer and Merck, for instance, have willingly licensed their patents to the United Nations-backed Medicines Patent Pool — enabling generic producers worldwide to manufacture their respective antivirals Paxlovid and Molnupiravir.

An expanded waiver would, however — as Iancu and Kappos foresaw — strike a severe blow to innovation in every sector by calling U.S. support for basic IP rights into question. Diagnostics, therapeutics, and vaccines manufactured for Covid-19 may be the first products impacted, but they’ll be far from the last.

When the TRIPS waiver was debated in May 2022, UN Secretary-General António Guterres was already discussing how renewable energy technology “must be treated as essential and freely-available global public goods” and “removing obstacles to knowledge sharing and technological transfer — including intellectual property constraints — is crucial for a rapid and fair renewable energy transition.”

And, of equal concern, the TRIPS waiver expansion would hamper U.S. competitiveness and domestic manufacturing by allowing companies in South Africa, India, and China to appropriate U.S.-developed technologies. There would be significant ramifications for U.S. businesses, in sectors ranging from software to entertainment to high-tech manufacturing.

IP rights form the bedrock of U.S. innovation, economic competitiveness, and national security. The waiver must not be extended.

Celebrating American Innovation

Inventor Spotlight
In celebration of Hispanic Heritage Month, USPTO and the Economic Development Administration recognized and paid tribute to the stories of three Hispanic entrepreneurs and innovators, all of whom depend on IP protections to achieve remarkable success:

• Dr. Daniela Blanco, Venezuelan-born chemical engineer, inventor, and founder of Sunthetics. At Sunthetics, Dr. Blanco creates proprietary machine learning platforms, underpinned and protected by a combination of patents, copyrights, and trade secrets. Her platforms allow scientists to develop chemicals, medicines, and materials more quickly and sustainably.

• Dr. Maria Artunduaga, Colombian-born physician-scientist, patent holder, and founder of Samay Health. At Samay Health, Dr. Artunduaga is working on bringing a wearable lung-function monitoring device, named Sylvee, to market. She credits a strong IP portfolio — which currently includes four granted U.S. patents — as instrumental to the startup’s success.

• Briselda Hernandez, Executive-director of Minot, North Dakota’s Souris Basin Planning Council (SBPC) and former AmeriCorps VISTA member. Through SBPC’s Business Accelerator Fund, Hernandez strives to spur entrepreneurship and innovation by providing startup financing to local budding businesses.