The Trump presidency is looming ahead, but what of
intellectual property policy.
Interestingly, BNA reported that Republican Congressional Representative
from California called on Trump to keep Michelle K. Lee as head of the United
States Patent Office. There also have
been grumblings about pushing for legislation to undermine and reverse the U.S.
Supreme Court’s Alice decision on patent eligible subject matter. Recently, the American Intellectual Property
Law Association (AIPLA) sent an advice letter to Trump regarding intellectual
property. Notably, the AIPLA letter
covers patent, trademark and copyright law in some relative detail, and also
gives some advice regarding trade secret law, domain names and other matters.
The copyright focus of the letter relates mostly to
Copyright Office leadership choice and modernization. The trademark focus is on consistency of
decision making concerning section 2(a) on disparagement (if it is upheld by the
U.S. Supreme Court), removing “deadwood” from the register, protecting U.S.
consumers from confusion from U.S. uses of foreign marks well-known in the U.S., and strengthening
the Madrid system.
The patent focus is the longest part of the letter and seems
to generally counsel the exercise of care in passing any more patent
reform particularly directed at litigation abuse. The message appears to be that
we need to study the changes that have been made to address abuses of the
system before we engage in any more changes to address litigation abuse (or at
least be fully aware of the changes that have been made). Notably, the letter states that the existing
changes may not address all abuses of the system, but that we also need to
consider lawful (non-abusive?) enforcement.
However, there is room for reform in, at least, two areas: the Patent Trial and Appeal Board and patent eligible subject matter.
The letter addresses the Patent Trial and Appeal Board
stating:
In the first few years of the PTAB’s existence, its
proceedings have been used more than anticipated, and some are concerned that
the proceedings, as currently implemented, are not as fair and balanced as they should be, and that they are stacked in
favor of those seeking to invalidate patents.
AIPLA believes that the proper balance can be found through targeted
changes, and we look forward to working with your Administration in this
effort.
And, as alluded to before, patent eligible subject matter
and the Alice decision are a major concern.
The letter nicely lays the groundwork for reforming Alice based on
administrative necessity and clarity:
Independent inventors, small and large businesses alike need
a strong, balanced and predictable patent system to foster R&D,
manufacturing and sales. Section 101 of
Title 35 sets out the categories of patent-eligible subject matter that may be
entitled to patent protection. However,
recent Supreme Court decisions have created uncertainty about the kinds of
innovations that are patent-eligible in certain industries, such as
biotechnology and computer software.
Meanwhile, the USPTO has experienced challenges in applying the Court’s
evolving interpretation of patent eligibility into its examination
processes. AIPLA believes that more clarity,
whether from the courts or from the Congress, is needed in this area, and we
ask that efforts to provide such clarity and predictability be supported by
your Administration.
The letter concludes with a
request for continued and increased enforcement of U.S. IP in foreign markets,
continued strengthening of trade secret protection and enforcement given an
asserted increase in hacking, and continued involvement in administering the
domain name system.
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Posted By Mike Mireles to
IP finance on 1/09/2017 10:41:00 pm