Inventor Rights, Virus-Related IP Seen as Patent Office Focus

Nov. 7, 2020, 5:39 PM

The U.S. Patent and Trademark Office is unlikely to be as tech-friendly in President-elect Joe Biden’s administration as under his Democratic predecessor, agency-watchers say.

Concerns about user privacy, election interference, and allegedly anti-competitive practices have made Democrats more wary of Big Tech. The patent office will prioritize patent rights and innovation under Biden, attorneys said.

It’s not clear whom Biden will tap to lead the agency or whether current director Andrei Iancu will stay on until a successor is in place.

Biden has emphasized U.S. innovation and manufacturing, and protecting IP from international theft, without a focus on any specific industry, said Erika Arner, a former PTAB Bar Association president who has worked with patent office directors in Republican and Democratic administrations.

The agency is seen as likely to continue Iancu’s efforts to set new rules around Patent Trial and Appeal Board procedures. The tribunal gained a reputation during the Obama administration as favoring tech company challenges to patents.

Making changes to the patent law to clarify what inventions are eligible for patent protection likely will be a focus for the incoming administration as well. Critics say Supreme Court precedent on the issue has undermined companies’ ability to protect intellectual property related to diagnostic testing and other medical innovations, an important concern in the Covid-19 pandemic.

IP Health Issues

Intellectual property issues related to the coronavirus pandemic and health care are likely to be a focus for the new administration, Russ Slifer, who served as deputy director during the Obama administration, said.

“IP policy will probably be more focused on pharma and its relationship to drug prices going forward,” Slifer said.

The coronavirus has had a significant impact on the agency. It launched an online marketplace for linking up virus-related patents available for licensing with businesses that could produce Covid-19-related solutions. It also started a fast-track examination process for small businesses working on Covid-19 drugs.

Chris Katopis, a former legal adviser in the patent office in the current administration, predicted that the agency is “going to look to get a new balance right” under Biden between patent owners and companies who get sued for infringing patents in technology they create.

Sen. Chris Coons (D-Del.), the top Democrat on the Senate Judiciary IP subcommittee, is expected to have Biden’s ear on intellectual property policy, attorneys said. Coons helped lead a Senate effort to amend patent eligibility law, but the legislation didn’t advance.

Tech Companies

The Obama administration was influenced by companies like Alphabet Inc.'s Google who were often sued for patent infringement, observers said. Michelle Lee, the agency’s director from 2015 to 2017, previously served as deputy general counsel at Google.

“Big Tech was seen really without blemish” in the early years of Barack Obama’s presidency, said Arti Rai, who led policy analysis for the agency on what became the America Invents Act, a law that overhauled patent law and created the Patent Trial and Appeal Board. Now “Big Tech isn’t the unequivocal good guy it once was,” Rai said.

A. Christal Sheppard, former PTO Midwest regional office director from 2015 to 2017, said Obama was elected when tech companies were a growing part of the economy.

“They couldn’t be second-class citizens to the old-school patent holders,” Sheppard said.

The Biden administration is likely to appoint a patent office director with institutional knowledge who has worked in various industries, Joshua Landau, a patent counsel at the Computer and Communications Industry Association, said.

To contact the reporter on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com

To contact the editors responsible for this story: Renee Schoof at rschoof@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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