Pro-Patent Panel Tells Senate IP Subcommittee It’s Time for a Better IP Strategy

The Senate Judiciary Committee’s Subcommittee on Intellectual Property today issued a patent expert to highlight the critical role intellectual property plays in the U.S. economy and to define the greatest threats to domestic and foreign intellectual property rights. held a public hearing featuring a panel of witnesses who Most panelists concluded that the most important step in re-establishing the U.S. as an intellectual property powerhouse would be to create a domestic It was that the public property system needed to be cleaned up.

Many of the hearings, entitled “Foreign Competitive Threats to America’s Innovation and Economic Leadership,” focused on threats from China, particularly in the area of ​​trade secret theft and counterfeiting. His senator Chris Coons (D-Germany), chairman of the IP subcommittee, said in his opening statement that in 2021, his four-fifths of all counterfeit goods will originate in China. rice field. The United States Patent and Trademark Office (USPTO) is inundated with his IP applications. Other countries such as India were also mentioned, but it was clear that the subcommittee’s focus was on the possibility of exploiting what Coons called a “slipped down” US patent system by the Chinese government. .

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Both Coons and Senator Thom Tillis (R-North Carolina), a ranking member of the subcommittee, also advocated, among other things, the Patent Eligibility Act, the Federal Trade Commission’s (FTC’s) recently proposed non-compete agreement, and TRIPS. Government support for IP waivers is a big part of the problem.

Mark Cohen, Asia Intellectual Property Project Director, Berkeley Center for Law and Technology, said at the subcommittee: Rather, we have made the grave mistake of not recognizing China’s growing ability to innovate, and need to get rid of the bureaucratic shortsightedness, outdated organizational structures, and data apathy that plagued the previous administration. I have. ”

Cohen identified three urgent steps for the government to take: 1) fill the still vacant Intellectual Property Enforcement Coordinator (IPEC) position, create a USPTO Deputy Director for International Affairs, and appoint Attorney General and / Or define the role of the USPTO. Educate the courts when confronting lawsuits from Chinese courts. 2) her IP in the United States by fixing eligibility issues, amending low-quality trademark filings from China, making China disclose government funding for her USPTO filings, and reconsidering TRIPS exemptions; Strengthen your system. 3) Address issues across government by creating task forces of key technical executives, academics and officials to address interdisciplinary challenges.

Tillis said last year when he commissioned first the American Council of Executives (ACUS) and then the National Academy of Public Administration (NAPA) to conduct a survey to gather data on considerations for consolidating US patents and trademarks. proposed such an approach. The Secretariat (USPTO), United States Copyright Office (USCO), Intellectual Property Enforcement Coordinating Office (IPEC) and other his IP-related offices under his one director appointed by the Senate and the President Yes, and there are separate commissioners for each sector. Tillis requested that the investigation be completed by March 31, 2023.

Cohen also raised the subject of the FTC’s proposal to ban non-compete agreements, which Cohen said would “make it much more difficult to enforce trade secrets in local markets.” Cohen also said that based on data publicly available in China, he has a 30% chance of winning a trade secret lawsuit across China, but if a non-competition agreement is involved, the odds drop. He said it would jump to 66%. Cohen asked:

Patrick Kilbride, senior vice president of the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC), said domestic threats to weakening IP policies, including support for TRIPS waivers and abuse practices in third-party litigation funding also focused on His FTC proposal on non-compete obligations. Kilbride went on to say that the threat of streaming piracy has led to the loss of 290,000 creative professional jobs in the United States in 2020, with $30 billion in income for those affected, while devastating the economy as a whole. pointed out that up to 500,000 jobs and $115 billion in GDP were lost. “The U.S. government does not currently provide tools to take down infringing websites based in foreign countries,” said Kilbride.

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Suzanne Harrison, chair of the Patent Publication Advisory Committee, suggested three actions the subcommittee could take.

Harrison said the IP narrative of the past 17 years has been more focused on optimizing systems for certain industries than others, which is why the Patent Trial Board (PTAB) was created and the public trust was lost. in the system. “This is a false and damaging narrative that either a USPTO examiner granted a patent that should not have been granted or a PTAB judge invalidated a rightfully granted patent. ,” he said, Mr. Harrison. To enhance awareness of your IP, you need to redirect its narrative.

turbulence ahead

Hoover Institution Visiting Scholar and Palantir Technologies Senior Advisor Matthew Turpin also highlights a missed red flag in China’s strategy to overtake the United States via IP in key technology areas. I was. Turpin cites the 10-year-old U.S. Intellectual Property Theft Commission and the Office of the U.S. Trade Representative’s 2017 investigation under Section 301 of the Trade Act to investigate unfair trade practices by China. and said:

“The Intellectual Property Commission, Section 301 investigations, and dozens of criminal indictments by the U.S. Department of Justice against multiple executive agencies have revealed a truth many are reluctant to admit. The Republic of China is the victim of a comprehensive and deliberate campaign by the Republic of China that engages in criminal activity, espionage, market manipulation, and government policy, causing significant economic and national security damage.”

In response to a subsequent question from Dick Durbin (D-IL), chairman of the Judiciary Commission, about how China’s progress on intellectual property happened even in the context of an authoritarian country. , no one imagined it would one day become more competitive.In order to undermine their system to make it look like they were playing by the rules of American democracy, they were “very We chose to compete in a different way.” [China] than what we see now. ”

Cohen also responded to Durbin’s question, explaining that the United States “had relied heavily on cliches” when it came to China. We thought it would create an open and democratic society, but that is not true and it could equally be used as a tool of oppression.We believe that once a country starts owning IP, all We assumed we were going to protect IP for people, and when we applied common perceptions from the rest of the world to China, we found that it didn’t quite work out as expected.”

Harris further emphasized the importance of relying on future data rather than history when predicting upcoming battles. “You can’t use history to predict the future. We did it with China’s intellectual property system, hoping that all other countries would take the same predictable steps and China would.” because you were doing it, and you didn’t.”

Transparency, Consistency, Standing

Other issues raised by both senators and witnesses include using existing tools to help China use existing tools under the World Trade Organization’s (WTO) TRIPS agreement, which states that final judicial decisions should be made public. It included ensuring transparency from Coordinate a consistent view of IP across government agencies. Create higher-level IP positions in the US government to assist in that coordination. Add a continuing requirement for the case before the PTAB.

“We recommend a continuation requirement,” Harrison said. “Why is it fair to allow a person with no standing to sue a patent owner? It is a fair question. Yes, and not what we want.”

Full testimony of all witnesses can be downloaded here.