Coalition Updates
- On October 25, C4IP sent a letter to Commerce Secretary Raimondo and HHS Secretary Becerra to express concern regarding the interagency working group reviewing the march-in provision of the Bayh-Dole Act.
- “We urge the interagency working group to follow the letter of the law and reject any specious interpretations that would turn Bayh-Dole into a price control mechanism.”
- On October 24, Former U.S. Deputy Secretary of Defense Robert Work and Senior Director for Society and Intellectual Property at the Special Competitive Studies Project Rama Elluru co-published an opinion essay in The Hill underscoring that the United States cannot compete with China without strong patent rights.
- “Our national security today is tied just as much to the productivity and dynamism of our private sector economy and its ability to incentivize private investment into new, cutting-edge technologies. And strong patent rights have historically driven that private-sector investment. We should take every step possible to preserve and strengthen them.”
- On October 19, C4IP sent a letter to Commerce Secretary Raimondo in advance of the October 20 summit on economic cooperation between U.S. and EU leaders, urging Raimondo to raise discussion of the EU’s recent standard-essential patent proposal.
- “It’s critical that EU and U.S. officials discuss [the proposal’s] tradeoffs at the upcoming summit. Failure to carefully consider them could harm quality of life, economic growth,technological leadership, and innovation in both the United States and Europe.”
- On October 18, C4IP held a reception in Washington, D.C. to celebrate the one-year anniversary of its launch. The event featured remarks from several members of Congress and IP thought leaders, including: Rep. Glenn Ivey (D-MD), Rep. Kevin Kiley (R-CA), Rep. Ben Cline (R-VA), C4IP Co-Chairs Andrei Iancu and David Kappos, and C4IP Board Member Judge Paul Michel (ret.). You can find full recordings and transcripts of remarks as well as photos here.
- On October 18, C4IP Executive Director Frank Cullen issued a statement in response to the U.S. International Trade Commission’s (ITC) newly released report investigating the potential expansion of the TRIPS waiver.
- “Now that the USITC has completed its report, the Office of the United States Trade Representative should recommit itself to preserving intellectual property rights both domestically and abroad.”
- On October 6, former Vermont Gov. and Democratic National Committee (DNC) Chair Howard Dean published an opinion essay in the Hartford Courant arguing that in order to promote American innovation leadership, the Biden administration must decisively reject the use of the Bayh-Dole Act’s “march-in” provision as a price control mechanism.
- “There’s no surer way to kill off investment in tech development than the constant threat of taking away exclusive patent rights.”
- On October 5, Unified Patents general counsel Jonathan Stroud and biotechnology and pharmaceuticals attorney Kevin Noonan co-published an opinion essay in Law360 explaining how the Patent Eligibility Restoration Act could spark innovation in high-tech areas and allow small businesses to compete on equal terms with large corporations.
- “PERA’s passage, whether in this or in some amended, carefully considered form, will support inventors, protect intellectual property rights, and ultimately help to create and effectively commercialize groundbreaking technologies and life-saving medications.”
- On October 3, C4IP Executive Director Frank Cullen issued a statement in support of the recently-reintroduced Stopping Harmful Offers on Platforms by Screening Against Fakes in E-Commerce (SHOP SAFE) Act.
- “The legislation will take meaningful steps to reduce the availability of counterfeit goods that siphon billions of dollars and countless jobs from our economy and stunt innovation. C4IP urges Congress to pass the SHOP SAFE Act expeditiously.”
- On October 3, C4IP sent a letter to Chairman Chris Coons (D-DE) and Ranking Member Thom Tillis (R-NC) applauding their recent introduction of the Stopping Harmful Offers on Platforms by Screening Against Fakes in E-Commerce (SHOP SAFE) Act ahead of a relevant Senate Judiciary Subcommittee on Intellectual Property hearing.
- “We applaud your recent introduction of the SHOP SAFE Act of 2023, S. 2934, and for quickly scheduling today’s hearing to consider the bill and the serious problem of counterfeits being sold through online platforms.”
- ICYMI: C4IP submitted written comments to the National Institutes of Health (NIH) in advance of the agency’s recent virtual workshop, “Transforming Discoveries into Products: Maximizing NIH’s Levers to Catalyze Technology Transfer.”
- Experts in the broader intellectual property community also shared their perspectives with the NIH. Some highlights from these submissions can be found here.
- ICYMI: C4IP announced the creation of a grant program for intellectual property research, scholarship, and writings. The program — which provides grants of up to $25,000 — will advance C4IP’s mission to provide lawmakers data-driven recommendations to inform IP policy. More information about the application process is available here, and questions about the program should be directed to C4IP Chief Policy Officer and Counsel Jamie Simpson at jamie@c4ip.org.
- The program has been covered by IPWatchdog, Legal Scholarship Blog, and SSRN.
Government Rundown
- House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet Hearing: IP and Strategic Competition with China: Part III: On October 19, the House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing to discuss IP and strategic competition with China — its third on the topic — with a specific focus on IP theft, cybersecurity, and AI. Georgetown University’s Dr. William Hannas, Scale AI’s Dr. John Brennan, the Center for Strategic and International Studies’s Dr. Benjamin Jensen, and CrowdStrike’s Robert Sheldon testified as witnesses. (House Committee on the Judiciary, 10/19)
- House Committee on Energy & Commerce, Subcommittee on Innovation, Data, and Commerce Hearing: Safeguarding Data and Innovation: Setting the Foundation for the Use of Artificial Intelligence: On October 18, the House Subcommittee on Innovation, Data, and Commerce held a hearing to discuss finding a balance between protecting data and fostering innovation in the growing field of artificial intelligence. Witnesses included The Software Alliance CEO Victoria Espinel, Emerson Collective CTO Raffi Krikorian, AI Now Institute Executive Director Amba Kak, actor and screenwriter Clark Gregg, and former FTC Chair Jon Leibowitz. (House Committee on Energy & Commerce, 10/18)
- Senate Committee on Health, Education, Labor & Pensions Hearing: Nomination of Monica Bertagnolli to be Director of the National Institutes of Health: On October 18, the Senate Committee on Health, Education, Labor & Pension (HELP) held a confirmation hearing to discuss the appointment of Monica Bertagnolli, M.D., the current director of the National Cancer Institute, as the new director of the National Institutes of Health (NIH). (Senate HELP Committee, 10/18)
- Senate Committee on the Judiciary, Subcommittee on Intellectual Property Hearing: Back to School with the SHOP SAFE Act: Protecting Our Families from Unsafe Online Counterfeits: On October 3, the Senate Judiciary Subcommittee on Intellectual Property held a hearing to discuss the recently-reintroduced SHOP SAFE Act, which aims to prevent the online sale of counterfeit consumer items. Sen. Chris Coons (D-DE), who introduced the bill alongside Ranking Member Sen. Thom Tillis (R-NC), presided over the hearing as Subcommittee Chair. (Senate Committee on the Judiciary, 10/3)
Fact Check
Claim: During the October 3 Senate IP Subcommittee hearing on the SHOP SAFE Act, Matthew Schruers of the Computer & Communications Industry Association (CCIA) claimed that by charging platforms — rather than brands — with the responsibility of vetting counterfeit items and sellers, the bill would harm small businesses.
Correction: While it is true that the SHOP SAFE Act would place the onus on platforms to identify and intervene against bad actors, it would not leave brands free from responsibility. The act would require brands to provide contact information and advance notice of their intellectual property to platforms, enabling the latter to implement effective preventative measures against counterfeit goods.
Additionally, holding platforms accountable for sales of counterfeit items that they facilitate would offer multiple significant improvements over the status quo. Platforms have a greater ability than brands to take action preventing the sale of dangerous items. Online marketplaces serve the same function as physical retailers, which are regulated under existing law in order to prevent the sale of counterfeit products. Holding platforms liable would provide a way for brand owners who have been harmed to obtain compensation for damages even when they are unable to take legal action against the seller itself, thereby incentivizing the platform to keep consumers safe.
Together, these factors would benefit — not harm — small businesses, which are often the original owners of the intellectual property that counterfeit sellers infringe. Currently, small businesses are forced to monitor platforms for fakes of their products, taking up extra resources and personnel that they cannot afford. More generally, when third parties illegally produce and sell counterfeit products based on another business’s intellectual property, the resulting sales detract from that business as well as harm its reputation in terms of safety and quality. These setbacks are particularly difficult to overcome for small businesses, which are usually still trying to build up brand recognition and have fewer legal resources compared to large corporations. The overall effect is a massive loss for the economy. According to a National Association of Manufacturers estimate, counterfeit items were responsible for over $130 billion in economic damage and the loss of 300,000 jobs in 2019.
In short, the claim is wrong in multiple key ways. The SHOP SAFE Act’s inclusion of liability for platforms would result in more effective safeguards against counterfeit items, protecting consumers and small businesses alike. With online counterfeit products affecting a quarter of Americans, the importance of the SHOP SAFE Act’s reforms cannot be overstated. Robust and economically beneficial innovation relies on a strong U.S. patent system.
Bottom Line: This claim is false.
Inside Look: What’s Happening in Congress
As Democratic and Republican members of Congress continue to weigh legislative priorities during the 118th Congress, top of mind for those who follow intellectual property policy are:
- The Prohibiting Adversarial Patents Act (PAPA): In September 2023, Representatives Scott Fitzgerald (R-WI), Mike Gallagher (R-WI), Darrell Issa (R-CA), and Blaine Luetkemeyer (R-MO) introduced legislation that raises a number of concerns. With the well-intended goal of protecting U.S. national security, PAPA has the potential to trigger significant unintended consequences. These include potential retaliatory moves by China and other nations to suspend or render unenforceable patents owned by American companies, further enabling theft of American IP overseas. The actions called for by the bill could also be argued to violate U.S. treaty obligations, which would in turn embolden other nations to violate IP-related treaties in various ways. In addition, it could be argued that confiscating patents, or rendering them unenforceable, violates basic principles of property, and therefore could weaken the concept of patents as property rights. These and other considerations are of the utmost importance as U.S. lawmakers take the time to study the full scope of PAPA. C4IP stands ready to work with Members of Congress to address the threat posed by foreign entities, while maintaining the integrity of the U.S. patent system.
- The Stopping Harmful Offers on Platforms by Screening Against Fakes in E-Commerce (SHOP SAFE) Act: In September 2023, Senators Chris Coons (D-DE) and Thom Tillis (R-NC) introduced legislation designed to protect online consumers from harmful counterfeit products. By establishing trademark infringement liability for e-commerce platforms that allow the sale of dangerous counterfeit items, requiring brand owners to notify platforms of their mark(s) in advance, and providing safety from liability to platforms that appropriately vet and remove counterfeit sellers, the SHOP SAFE Act will protect American families as well as businesses and IP holders.
- The Patent Eligibility Restoration Act of 2023: In June 2023, Senators Thom Tillis (R-NC) and Chris Coons (D-DE) reintroduced legislation aimed at restoring patent eligibility for important categories of inventions — including life sciences diagnostics, gene therapies, and computer-implemented inventions — as well as resolving questions regarding the scope of patent eligibility. In so doing, the Patent Eligibility Restoration Act will foster the development of next-generation technologies across innovative industries.
- The Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act: In June 2023, Senators Chris Coons (D-DE), Thom Tillis (R-NC), Dick Durbin (D-IL), and Mazie Hirono (D-HI) — joined by Representatives Ken Buck (R-CO) and Deborah Ross (D-NC) on the House side — introduced legislation that will eliminate redundant patent invalidity challenges and safeguard Americans’ right to participate in a fair and accessible patent system. The PREVAIL Act contains important reforms to the Patent Trial and Appeal Board, which will return the body to its original purpose of providing an efficient alternative to district court litigation, and will curtail the practice by patent infringers of forcing inventors to defend their patents repeatedly and in multiple fora.
- 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.
Celebrating American Innovation
Inventor Spotlight
This month, C4IP is recognizing Edwin Armstrong, whose invention of the frequency modulation (FM) radio system revolutionized modern communication.
Edwin H. Armstrong was born in New York City in 1890. He was fascinated from a young age by mechanical devices and decided to become an inventor at the age of 14 after learning about Guglielmo Marconi, the inventor of the first practical radio. Armstrong attended Columbia University’s engineering school, where he developed and patented improvements to radio technology that would eventually prove essential to his signature invention. During World War I, he served in the U.S. Army Signal Corps and continued to develop radio innovations before eventually returning to Columbia as a teacher.
In 1933, Armstrong made his breakthrough discovery. Combining the numerous advanced circuits he had invented, he created the first frequency modulation (FM) radio system, which avoided natural static and made possible the first high-fidelity broadcasts. Armstrong patented this invention in 1933 and built the first FM radio station in 1940.
Ninety years after Armstrong patented his invention, we are reaping its benefits more than ever, showing how a strong IP system leads to meaningful innovation. The FM radio system he pioneered has become the dominant method of radio broadcasting and is also used to broadcast audio for television and enable communication with space satellites. It has enabled numerous other technological breakthroughs — including the moon landing.
In 2023, there were estimated to be more than 15,000 radio stations in the United States, with more than two-thirds dedicated to FM broadcasting. The global radio broadcasting industry is worth an estimated $143 billion. And despite the growth of online streaming platforms, radio is still extremely popular — thanks largely to the FM method’s high fidelity. According to a recent Nielsen report, radio reaches more than nine in 10 Americans each month.