A Holiday Message from C4IP
As December draws to a close, we wish you and your family a very happy holiday season and a wonderful New Year! We look forward to a productive 2023, and thank you for your continued interest in — and support for — the Council for Innovation Promotion.
- Congratulations to C4IP board member Judge Paul Michel (Ret.) on his well-deserved induction into the inaugural class of the IPWatchdog Masters™ Hall of Fame. The prestigious honor was bestowed in recognition of Judge Michel’s longstanding commitment to educating policymakers and courts on the strategic importance of a strong American IP system.
- On December 21, C4IP Executive Director Frank Cullen released a statement commending lawmakers for including pro-IP provisions and avoiding IP landmines in the FY2023 Omnibus bill.
- On December 21, C4IP Executive Director Frank Cullen published an opinion essay in the Washington Times arguing that assaults on intellectual property are crushing American innovation.
- On December 15, C4IP sent a letter to HHS Secretary Xavier Becerra urging him to reject calls to misuse the Bayh-Dole Act.
- On December 15, C4IP Executive Director Frank Cullen published a blog post admonishing the counterfeiters stealing an unprecedented amount of IP this holiday season.
- On December 13, C4IP sent a letter to Senate lawmakers expressing concern about the Interagency Patent Coordination and Improvement Act of 2022.
- On December 11, C4IP co-chair David Kappos published an opinion essay in InsideSources taking former U.S. Attorney General Michael Mukasey to task for his recent criticism of America’s patent system.
- In a blog post on December 6, C4IP co-chairs Andrei Iancu and David Kappos criticized the USTR for postponing a decision on the TRIPS waiver expansion — and urged the United States to reject the WTO proposal once and for all.
- On December 2, C4IP Executive Director Frank Cullen published a blog post commending the U.S. Senate for unanimously passing the Patents for Humanity Act of 2022.
- On December 2, C4IP co-chair Andrei Iancu joined host Tom Temin on The Federal Drive to discuss foreign threats to IP. Listen here.
- On December 1, C4IP Executive Director Frank Cullen published an opinion essay in RealClearPolicy urging Congress to pass the Patent Eligibility Restoration Act.
- On December 1, C4IP co-chairs Andrei Iancu and David Kappos hosted a virtual conversation with former U.S. Secretary of Commerce and U.S. Ambassador to China Gary Locke to discuss the implications of expanding the TRIPS waiver.
- On November 30, C4IP co-chair Andrei Iancu discussed the importance of American innovation, creativity and the patent system on the Fashion Law Network podcast. Listen here.
- On November 29, C4IP co-chair David Kappos discussed all things IP on the On Intellectual Property podcast. Listen here.
- New Poll Highlights the IP News that Mattered Most in 2022: IPWatchdog asked readers to weigh in on the “IP news that mattered the most to them in 2022.” Developments on the list included the WTO TRIPS waiver, the confirmation of Kathi Vidal as USPTO Director, and the formation of C4IP. (IPWatchdog, 12/19)
- USPTO Announces The Cancer Moonshot Expedited Examination Pilot Program: The USPTO announced that it will launch a new Cancer Moonshot Expedited Examination Pilot Program on February 1st. The program will expedite the examination of patent applications for technologies that prevent cancer and cancer mortality. (BloombergLaw; USPTO, 12/08)
- Senate Judiciary Still Considering Pride in Patent Ownership Bill Despite Opposition: A number of patent advocacy organizations sent a joint letter to the Senate Judiciary Committee, urging them to oppose the Pride in Patent Ownership Act (PPOA). The opposition comes with concern that the bill will harm startups, inventors, and universities. (IPWatchdog, 12/07)
- USTR Urges WTO to Delay Vote on IP Waiver Expansion; Calls for USITC Study: The USTR publicly urged the WTO to postpone a vote on extending the current TRIPS waiver and requested that the United States International Trade Commission investigate the “market dynamics” for Covid-19 diagnostics and therapeutics. The announcement drew sharp criticism, including from the U.S. Chamber of Commerce, for dragging out deliberations and failing to reject the WTO proposal once and for all. (Law360, 12/06)
Claim: On December 6, the Office of the U.S. Trade Representative urged the World Trade Organization to “[extend] the deadline to decide whether there should be an extension” of the TRIPS waiver. The USTR also announced it would ask the U.S. International Trade Commission “to launch an investigation into Covid-19 diagnostics and therapeutics and provide information on market dynamics.” Ambassador Katherine Tai claimed, “Real questions remain on a range of issues, and the additional time, coupled with information from the USITC, will help the world make a more informed decision…”
Correction: We already have all the evidence needed to make an “informed decision” on expanding the TRIPS waiver. After five months of consultations with relevant experts and stakeholders — and access to a wealth of data on “market dynamics” for Covid-19 diagnostics and therapeutics — it’s clear there are no grounds for an expansion.
No IP-induced shortages exist for these products. As C4IP co-chairs Andrei Iancu and David Kappos recently underscored, “diagnostics manufacturers have reported large surpluses of tests available for order. Governments and NGOs, meanwhile, have large stockpiles of treatments going unused.”
No “real questions” remain for an investigation to address. And the “additional time” taken by the USITC to conduct this redundant study, is time that IP-intensive industries don’t have — as many patents remain in jeopardy.
Bottom Line: This claim is false.
What’s Happening in Congress:
With the 117th Congress winding down and the heightened efforts to pass legislation, several patent-related measures have been the subject of attention this month:
- The Pride in Patent Ownership Act: In September 2021, Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) introduced the Pride in Patent Ownership Act. The proposed legislation seeks to increase transparency and accuracy in the public record of patent ownership and can provide value in this regard. However, IP experts warn that further amendments are needed, otherwise this measure would introduce more red tape for patent holders and require the submission of tedious ownership recordation documents to USPTO. A mere foot-fault error in compliance could result in a patent becoming effectively useless. Recent modifications have moved the legislation in the wrong direction, rendering it clearly damaging to our patent system, and providing a get-out-of-jail-free opportunity to blatant patent infringers. The bill was originally slated for a formal mark-up and vote in the Senate Judiciary Committee on December 15, 2022. But the mark-up was canceled and the measure was left out of the omnibus spending package. Given Sen. Leahy’s year-end retirement, it is unclear whether the bill will be reintroduced in the 118th Congress.
- The Interagency Patent Coordination and Improvement Act of 2022: In June, Senators Dick Durbin (D-IL), Thom Tillis (R-NC) and Chuck Grassley (R-IA) introduced the Interagency Patent Coordination and Improvement Act of 2022. The bill would create a task force to share patent filing information between USPTO and FDA officials. Given its reach, IP experts caution that Congress should hold off action until both the USPTO’s public comment period and joint USPTO-FDA public listening session on this matter conclude, so that valuable input from key stakeholders can be collected. The measure was left out of the omnibus spending package. It is expected that a version of this bill will be reintroduced in the 118th Congress.
- Patent Trial and Appeal Board Reform Act of 2022: In June, Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), and John Cornyn (R-TX) introduced the Patent Trial and Appeal Board Reform Act of 2022. Entrepreneurs, small business advocates, and IP experts caution that the bill omits important improvements needed to ensure PTAB fairness to patent owners. Given Sen. Leahy’s year-end retirement, it is unclear whether the bill will be reintroduced in the 118th Congress. Advocates for the bill are expected to seek out a new sponsor.
- Patent Eligibility Restoration Act of 2022: In August, 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 the patent system. Some version of this measure is expected to be reintroduced in the 118th Congress.
- Unleashing American Innovators Act of 2022: In September 2021, Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) introduced the Unleashing American Innovators Act of 2022. The bill would require the USPTO’s satellite offices to conduct outreach efforts geared toward women, minorities, military veterans, and other groups typically underrepresented within the patent system. The measure would also lower application fees for small businesses and establish a pilot program to help first-time inventors assess the patentability of their idea. The bill passed the Senate on December 6, 2022 and was included in the omnibus spending package.
- 118th Congress Organization: The formal organization of the House and Senate Standing Committees is ongoing and is expected to be finalized in late January. Accordingly, membership and ratios of the respective Judiciary Committees are also ongoing. Below are the expected Chairs and Rankings:
- House Judiciary Committee: Jim Jordan. (R-OH), Chairman; Jerrold Nadler (D-NY), Ranking Member; Darrell Issa (R-CA), IP Subcommittee Chairman; Hank Johnson (D-GA), IP Subcommittee Ranking Member.
- Senate Judiciary Committee: Richard Durbin (D-IL), Chairman; Lindsey Graham (R-SC) Ranking Member; Chris Coons (D-DE), IP Subcommittee Chairman; Thom Tillis (R-NC) Ranking Member.
Inside Look: The Link Between IP and the Cancer Moonshot
The USPTO just announced a new Cancer Moonshot Expedited Examination Pilot Program. The program — to begin February 1, 2023 — will expedite the examination of patent applications pertaining to a host of technologies that prevent cancer and cancer mortality.
This is a promising measure taken by the Biden administration to encourage IP-based investments in innovation and make headway on the president’s goal of slashing cancer death rates by 50% over the next 25 years.
Unfortunately, for every step forward on this front, some policymakers would take us two steps back. Right now, members of Congress are calling for the Department of Health and Human services to misuse the Bayh-Dole Act’s march-in provision to seize a developer’s patent rights — undercutting the investment incentives behind the USPTO’s new program.
If successful, patent rights would be subject to the whim of lawmakers, who would have the government relicense them to generic manufacturers on the basis of price — which is not a valid criterion to “march-in” under the Bayh-Dole Act. The law’s principal authors, Senators Birch Bayh (D-IN) and Bob Dole (R-KS), never intended for march-in rights to be used as de-facto price controls. That’s precisely why no Republican or Democratic administration has ever approved a petition on those grounds.
Veering from this well-established precedent would spell disaster for American innovation. Revoking intellectual property safeguards — via government march-in — would cast a dark cloud of uncertainty over biotech companies and the likelihood of recouping their investments. They wouldn’t be able to dedicate billions of dollars towards the risky R&D endeavors required to deliver a bona fide cure for cancer patients.
As lawmakers weigh these policy decisions, they should bear in mind that the success of the cancer moonshot is inextricably linked to a strong IP system. Undermine patents and this sky-high ambition will never leave the launch pad.
Celebrating American Innovation
In light of the winter solstice, C4IP is recognizing a renowned American inventor who provided cold-weather protection — and altered the course of his hometown — with his patented invention: earmuffs.
Chester Greenwood, American inventor and founder of Greenwood’s Ear Protector Factory. Born in Maine, with an affinity for ice skating outdoors, Greenwood was no stranger to winter-weather discomforts — including sore ears. Seeking a solution, he sewed pads of beaver fur onto a wire frame with ear-shaped loops — inventing modern-day earmuffs as a mere teenager. After patenting his invention in 1877, he then founded Greenwood’s Ear Protector Factory in his hometown of Farmington — which would become known as the ” Earmuff Capital of the World.” By Greenwood’s death in 1937, his factory had supplied earmuffs to troops during World War I, provided steady local jobs for nearly 60 years, and produced over 400,000 pairs annually.