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Read about recent events, essential information and the latest community news. LES USA/Canada Supports Exclusive Rights for Inventors The Licensing Executives Society (USA & Canada), Inc. (LES) supports strong and reliable intellectual property rights as crucial to a thriving economy and improved quality of life for all. The U.S. Constitution affords inventors an exclusive right in their discoveries for a limited time. Since our nation’s founding, we have respected innovation, and the valuable work of our nation’s inventors, by granting inventors the legal right to exclude others from practicing their inventions without permission. Recent judicial precedent has weakened that right. As such, we have diminished the incentive to invest time, talent, and treasure in the discovery of new and better products and processes. LES supports legislation that would re-affirm the inventor’s exclusive right by affording an inventor a rebuttable presumption in favor of injunctive relief when it is finally determined that a duly issued patent has been infringed. The recently introduced bipartisan, bicameral Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act of 2024 is a good example of legislation that would achieve that worthy objective. We encourage all members of Congress to carefully consider such legislation, and its capacity for revitalizing American innovation, and to act accordingly. LES Submission re Translation of IP to Market LES has responded to the USPTO Request for Comment: “Unlocking the Full Potential of Intellectual Property by Translating More Innovation to the Marketplace.” As the premiere association for licensing professionals, LES is especially well suited to address this topic. LES urged the USPTO to continue its tradition of supporting strong, reliable, and predictable IP rights. Recognizing inventors’ exclusive rights in their respective inventions is essential to fulfilling our Constitution’s mandate to “promote the progress of the useful arts.” The USPTO should work within the Administration and with Congress to promote common sense reforms to restore IP rights that have been eroded by certain judicial decisions, and by recent legislative initiatives. The USPTO should also look for opportunities to leverage public-private partnerships in the development of IP in the mode of the Bayh Dole Act. It should oppose proposals that would weaken inventors’ rights as by enlarging the statutory basis for exercising the Bayh Dole march-in power or waiving IP rights under the TRIPS agreement. Shoring up our patent system would make IP a more reliable asset, promoting investment and the dedication of talent to the innovation enterprise. Lives would be improved, and our economy and national security would be enhanced. Federal Laboratory Consortium Enters into Partnership with The Licensing Executive Society (LES) USA and Canada
LES USA & Canada has urged the CIPO to oppose a recommendation from WIPO’s Intergovernmental Committee that would require inventors to disclose the use of genetic resources or traditional knowledge in an invention. This places an added burden on inventors, and puts the associated IP rights at greater risk. The result will diminish innovation and investment where it is likely to do the most good in fostering new discoveries and enhancing economic development. LES supports legal regimes that encourage innovation and discovery, and that promotes the development of inventions from concepts to useful commercial products for our collective well-being. Imposing added burdens on inventors and investors will frustrate those objectives, and diminish innovation. LES Comment in Response to NIST Guidance Framework for March-In On February 5, 2024, LES USA & Canada submitted comments in response to a NIST RFI on a proposed Guidance Framework for exercising the Bayh Dole march-in authority on the basis of price. LES urges NIST to withdraw the Framework from further consideration immediately. Bayh Dole has been transformative in stimulating innovation in all sectors of our economy. It has enhanced national security, and produced innumerable new enterprises, new jobs, and new products for the common good. Since Bayh Dole’s enactment 43 years ago, no administration, Democrat or Republican, has invoked the march-in authority on any basis, including price. To do so now, without any sanction from Congress, would be contrary to the letter and the spirit of the law, and would undermine the virtuous cycle of public-private partnerships that develops basic research into useful products. LES Response to PTO RFI re Genetic Resources and Traditional Knowledge LES USA & Canada has urged the USPTO to oppose a recommendation from WIPO’s Intergovernmental Committee that would require inventors to disclose the use of genetic resources or traditional knowledge in an invention. This places an added burden on inventors, and puts the associated IP rights at greater risk. The result will diminish innovation and investment where it is likely to do the most good in fostering new discoveries and enhancing economic development. LES supports legal regimes that encourage innovation and discovery, and that promotes the development of inventions from concepts to useful commercial products for our collective well-being. Imposing added burdens on inventors and investors will frustrate those objectives, and diminish innovation. LES USA/Canada Written Submission to USITC regarding TRIPS On May 1, 2023, LES USA & Canada submitted comments to the USITC in its investigation of an expansion of the TRIPS waiver for COVID-19-related technologies. LES urged that such a waiver will not increase access to COVID-19-related diagnostics and therapeutics, and so should not be supported by the U.S. government. Nor should such a waiver be approved by the World Trade Organization (WTO). Last year, WTO approved a waiver of IP rights for COVID-19 vaccines, permitting member countries to waive IP rights to such vaccines. The waiver now under consideration would permit countries to waive IP rights to COVID-19-related technologies beyond vaccines, to include therapies and diagnostics. The USITC has been tasked with investigating whether the U.S. should support such an expanded waiver. LES urged that it should not. There has been no evidence that a waiver of IP rights would increase access to, or availability of, COVID-19-related vaccines, diagnostics, or therapeutics. Indeed, we have witnessed the opposite. A strong and reliable international regime of IP protection has enabled various organizations to collaborate across borders to share knowledge and rapidly produce vaccines, diagnostics, and therapies in record time. Such collaboration would not have been possible without a reliable system of property rights. The premise that IP rights are somehow an obstacle to innovation, collaboration, production, and distribution is unfounded. Thus, the U.S. should not support such an initiative, but should instead urge the international community to respect intellectual property rights, and to abide by the carefully negotiated TRIPS Agreement according to its terms. LES submitted comments to the FTC cautioning against adoption of its proposed ban on non-compete clauses. LES expressed the view that the FTC's proposed blanket ban on all non-compete clauses is unduly broad, and fails to take into account the many valid and meritorious uses of non-compete clauses. In particular, LES explained that such a ban would deprive innovators of effective tools for protecting the fruits of their innovation, and that alternatives (e.g., NDAs) are not sufficient to protect valuable IP. In the absence of non-compete clauses, judiciously deployed, unfair competition will increase, and misappropriation will be more readily shrouded in secrecy within the recesses of competing research facilities. LES urged that the FTC defer action on this initiative in favor of greater input and involvement from innovators for whom effective IP protection is critical to survival. LES Response to RFC on USPTO Initiatives on Robustness and Reliability of Patent Rights On January 31, 2023, LES submitted comments in Response to a Request for Comment from the USPTO to Ensure the Robustness and Reliability of Patent Rights as published in the Federal Register. The RFC addresses a variety of topics, including prior art searching, support for claimed subject matter, request for continued examination (RCE) practice, and restriction practice, and requested comments on questions posed in a June 8, 2022 letter from six U.S. Senators to the Undersecretary of Commerce for Intellectual Property and Director of the USPTO, Kathi Vidal. LES expressed support for general initiatives relating to enhancing examiner training and ensuring that examiners are provided with state of the art search tools and other resources. However, many of the initiatives are in the form of proposed changes to regulations and procedures affecting: the sufficiency of disclosure and clarity of claim language under 35 USC 112, restrictions on Continuation practice and the use of RCEs, changes to Restriction Practice, as well as other initiatives that would burden inventors and generally complicate and delay examination. In opposing the specific initiatives, LES offered the observation that the Senators’ June 8 letter described purported abuses of the patent system, but did not offer any evidence or data to support the existence or character of such abuses. Likewise, the RFC itself did not offer any evidence of abuses or deficiencies in the various practices that would be affected by the proposed initiatives, nor did it show any evidence of consensus among the user community that abuses were occurring on any substantial scale, were negatively affecting the US patent system, or were generally perceived to be in need of improvement or modification. LES agrees with US Senator Thom Tillis who has urged
that the USPTO should not make significant changes to the US patent
system without strong, compelling, fact-based evidence supporting such
changes. LES is of the view that the US patent system is a powerful
economic engine, and is critical to the functioning of our world-leading
innovation economy. The USPTO should follow the path of evidence-based
policy making, not policy-based evidence making. As Senator Tillis has
observed, certain critics of our patent system have asserted “facts”
and “findings” purportedly showing deficiencies and abuses of our patent
system, but which are of dubious merit, and lacking in transparency and
reliability. Those assertions do not justify the scale or character of
the proposed initiatives, and thus the initiatives should not now be
undertaken without more robust and reliable evidence.
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