“The Reliable IP Side of Dynamic Competition”
Deputy Director of the U.S. Patent and Trademark Office Laura Peter
September 30, 2020
As prepared for delivery
Good afternoon, everyone, and thank you, Rebekah (Gantner) for the gracious introduction.
I am especially happy to be here at this forum, not only because of the Eagle Forum’s love for inventors, but also because this is my first in person event since the beginning of the pandemic. It is really a joy to be talking to real people, and not to a computer! Thank you to the whole Eagle Forum for your ardent friendship to American inventors and innovation, but also thank you for making this event happen in a place where we can meet safely in person this year!
I would like to start with a bit of philosophical grounding of American intellectual property, and how intellectual property became a part of the United States Constitution. Our founding fathers—Thomas Jefferson, George Washington, John Adams and others—were devoted students of philosophy.
Eighteenth-century British philosopher John Locke had a great influence on all of them. His view was that human beings are endowed with certain natural rights: namely, ‘life, liberty, and property.’ The idea being that if a person invested their creativity and hard work to create something, she or he deserved to reap the rewards of that work.
Though Thomas Jefferson altered this language in the Declaration of Independence in 1776, changing property to “the pursuit of happiness,” Locke’s natural rights principle formed a pillar on which our great nation was founded. Our founders enshrined this principle in Article 1, Section 8, of the United States Constitution.
During the Trump Administration, we, at the USPTO, have worked hard to bolster and strengthen these founding rights. It is the protection of inventors, provided by the U.S. patent system, that provides all with the opportunity to achieve the American Dream, and that creates the industries which have revolutionized global commerce. Now, it is my delight to speak with you about a few of our accomplishments over the past few years and the current state of IP in our country.
Under the leadership of the Trump Administration, we at the USPTO have been working hard to spur innovation across America—including of late, with respect to COVID—related innovations. Nine months ago, we were just learning about the novel coronavirus. Yet, as of just this last September 23rd, there were at least 92 potential vaccines under evaluation, with more than 40 in pre-clinical evaluation. Notably, there are now 10 vaccines in Phase 3 clinical trials.
Although our lives have yet to return to normal, this is really quite remarkable. Innovations and intellectual property that were already percolating in the scientific community and health industry gave researchers and scientists a head start in developing vaccines for this pernicious disease. Their efforts, based upon prior achievements, lends support to the notion that IP is a critical factor in eliminating the coronavirus.
At the USPTO, our duty is not to create cutting edge medicine or develop desperately needed vaccines, but the Constitution does make it our duty to, “protect and promote the progress of science and the useful arts,” …to protect and promote the intellectual property of those who do create and develop such things for the benefit of humanity! Every day, this Administration, and all of us at the USPTO pledge our fidelity to this constitutional mandate, and to the protection of innovators and entrepreneurs who have made—and continue to make—this country great.
From the start of the pandemic, the USPTO took immediate action to give relief to support innovators and entrepreneurs and to spur innovation. Within two days of passage of the CARES Act, on March 27th, we have: extended virtually all patent and trademark filing dates; made electronic filing available for almost all filings, including filing for initial patent term extensions, and filing of plant patents; and we’ve provided the option for early publication of COVID-related applications. We initiated a new Patents 4 Partnership platform that lists COVID-related patents and patent applications whose owners have designated them as “available for licensing.” Also, we created a COVID-19 Prioritized Examination Pilot Program for both Patents and Trademarks for COVID-19-related applications, for accelerated processing.
These new initiatives aimed at ending the pandemic are proving very popular. We currently have more than 892 license postings on our Patents 4 Partnerships platform. Plus, over 300 patent applicants and 170 trademark applicants have requested prioritized examination. As a result of this program, 13 patents have been allowed, so far.
We created the COVID-19 Response Resource Center which is a special section of our website dedicated to hosting information on all of our COVID-related initiatives. You can access the Resource Center by going to our homepage and clicking on the link located in the blue ribbon. Within the Resource Center we provide information on the various USPTO resources, including all of the initiatives I have mentioned today.
According to the 2020 U.S. Chamber of Commerce’s Global Innovation Policy Center’s (GIPC), International IP Index, the U.S. has the second strongest intellectual property system in the world, and for trademarks and copyrights, we rank number one! This is good news, and it is the result of a lot of hard work by the folks at the USPTO who maintain our system of protecting inventors. For the United States to remain the world’s preeminent power, we must continue to ensure reliable IP rights that can be meaningfully enforced.
This issue is of immense importance to the current Administration, and of personal importance to both the Director of the USPTO, Andrei Iancu, and to me. Over the past four years, we have instituted a number of reforms aimed at making U.S. patents more reliable, stable, and predictable. Specifically, we have taken action in the examination process and in proceedings at the Patent Trial and Appeals Board (PTAB) with respect to patent eligible subject matter under section 101.
Although the statutory language regarding patentable subject matter has remained virtually unchanged since Thomas Jefferson’s days in the 1790s, we know that certain judicial decisions introduced uncertainty in Section 101’s legal application. The USPTO’s efforts to clarify these matters notably included the “2018 Berkheimer Memorandum” and the “2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG).”
Since issuing both sets of guidance, the USPTO has seen a significant drop in the rate of Section 101 subject matter eligibility rejections. In fact, a report published in April, confirmed that uncertainty decreased by a remarkable 44%!
The changes initiated at the Patent Trial and Appeals Board have been many and include important changes, including to the PTAB claim construction standard, namely, the change from the “Broadest Reasonable Interpretation” standard, to the Phillips Standard which is consistent with the standard used by Federal Courts and the ITC, and also, to post-grant proceedings. Patent owners now have the opportunity to draft narrower claims if patent claims are invalidated post-grant. Our PTAB has also updated the Trial Practice Guide, and published two new Standard Operating Procedures: one to outline procedures used for judicial assignments; and the second, creates a Precedential Opinion Panel.
I am happy to report that during the pandemic our PTAB and TTAB were among the first tribunals in the nation to adopt hearing procedures in a virtual setting. In July, we launched the Fast-Track Appeals Pilot Program that allows appellants to accelerate the timeline for ex parte appeals. It is similar to accelerated examination of patent applications under our Track-One program. So, as you can see, we have remained busy and focused, and we continue to seek ideas for meaningful reforms and improvements!
I would be remiss if I didn’t mention the work surrounding the 2019 USPTO/NIST/DOJ Joint Policy Statement on Standard-Essential Patents Subject to Voluntary RAND or FRAND Commitments.
As you may know, some had read the earlier 2013 statement to signal that injunctions and other exclusionary remedies should not be available in actions for infringement of standards-essential patents. And then, in 2014, the Federal Circuit emphatically stated that there is no per se rule that injunctions are not available. Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1331 (Fed. Cir. 2014). So, taken together, it was clear that it was time to issue a new policy.
The 2019 statement intended to solve this misinterpretation, and to encourage balance in our patent eco-system, and to further strengthen patent rights! Overall, both licensors and licensees seem satisfied with the clarity that the 2019 Policy provides.
Of course, this has potential implications for anti-trust enforcement as well, and for the promotion of competition for the benefit of consumers. I defer to rest of today’s experts to discuss this in further detail, but we are generally seeing a trend emerging with U.S. and European authorities determining that violations of SEP commitments are a breach of contract issues, and not antitrust issues. We at the USPTO look forward to continuing both discussion and engagement on these issues.
Rest assured that all of the changes in the recent months, over the past four years under this Administration, and those that might come in the future, have been made with the goal of making our IP system reliable, predictable, and strong! These reforms ensure that all Americans can build on the ideals that our nation was founded on, and that they can reap the rewards of efforts which they have sown. A true commitment to the continued protection of our inventors will keep our country great, and stronger than ever before!
I started with a discussion of America’s founders, and I want to come back to them. Thomas Jefferson was a member of the First Patent Board under the Patent Act of 1790. In his words: “ingenuity should receive a liberal encouragement.”
Thomas Jefferson was a true friend of inventors and innovation, and I’ve tried my best to be such a friend, too.
Thank you to the Eagle Forum for your continued advocacy on behalf of inventors and your devoted friendship to them. Thank you for inviting me here today.