Letter from AmeriKat: Biologics data exclusivity tripping up TTP, Samsung wins CAFC Smartflash stay & USPTO IP Girl Scout Patch

The AmeriKat hypnotized by the calm,
peaceful air of a New England
summer's night

The AmeriKat is back in her motherland this week.  Having commenced this journey with a fleeting visit past the hallowed grounds of the USPTO in Alexandria, Virginia (like the Taj Mahal it was smaller than she expected), the AmeriKat is now perched in her upstairs study watching as a neighbor's American flag gently flaps against the pillars of their New England porch.  It is a peaceful and lazy Sunday night.  The warm summer air is cut only briefly by the salty breeze from the Atlantic Ocean a few blocks away.  Coast to coast tonight American families are undertaking their Sunday night routines - cleaning up after dinner, watching their Sunday night shows, organizing a week of carpool.  For the AmeriKat, her Sunday evening has included searching for the latest IP news and goings-on from across the nation.  This week's stories take us from sea to shining sea, starting first with Mountain View, California and ending up back in Boston via Hawaii and D.C.

IP Girl Scout's patch

USPTO's Girl Scout IP patch:  Last Thursday, USPTO Director Michelle Lee announced that on 15 October 2015, the USPTO will have its grand opening of its permanent Silicon Valley satellite office in San Jose's City Hall.  The announcement came during Lee's attendance at a Churchill Club discussion in the Mountain View offices of Microsoft  (to watch the session click here).  Lee, a transplant from Santa Clara via Fenwick & West, stated that the USPTO also has an initiative underway in collaboration with the Intellectual Property Owners Education Foundation for an IP Girl Scout patch.  For those unfamiliar with the concept, Girl Scout patches are earned after a member completes certain tasks.  As a former Girl Scout herself (first as a Brownie and then as a Junior), Lee commented that her first badges were earned in first aid and sewing:  "In this day in age we have to do better and we can do better by getting girls to enjoy invention and creation and entrepreneurialism." Girls will win an IP patch by learning about copyright, patents, trade marks and trade secrets.  The USPTO's Guide on the patch explains that:

"Girls at some levels of the patch are expected to develop the skills to conduct very rudimentary searches for patents and trademarks utilizing the USPTO databases and publicly available resource and research tools. Real world examples of girls and women who have received U.S. patents and registered Trademarks are provided as examples to demonstrate the potential of girls to invent, create, and go into business as well as the accessibility and value of IP protection. Girls are also encouraged to explore careers in intellectual property and STEM."

The AmeriKat loves this initiative and encourages those US IP enthusiasts and professionals to get involved by sharing their experience and stories with their local Girl Scout troop.  More information on how to get involved can be found here.  The only thing the AmeriKat wishes is that she could get a patch of her own...

Biologics data exclusivity argument puts pressure on TTP negotiations:  A few weeks ago, the AmeriKat wrote about the ongoing negotiations in the Trans-Pacific Partnership deal and the IP issues that were causing some turmoil for the parties on the matter of pharmaceutical IP protection (see post here).  Given that it would be the largest regional trade deal if concluded, it is no surprise that there are some bumps in the road especially in relation to an industry that contributes almost $800 billion to the US economy.  However, a recent article in the AmeriKat's favorite of paper - the New York Times - reported that US officials were finding themselves between a rock (activists aiming to secure access to low-cost pharmaceutical products) and a hard place (Republicans who threaten to vote down the deal if it doesn't provide for strong IP protection).

Senator Hatch

During last week's meeting in Hawai, it was this issue that was reported to elicit the most fevered debate.  Utah Republican Senator Orrin Hatch claimed that “a strong intellectual-property chapter - including strong patent and regulatory data protections for biologics- is vital to securing congressional support for this trade deal.”  Biologics are reported to account for 900 of the 3,372 drugs in development in the US.  Whats the beef with biologics?  US data exclusivity protects biologics for 12 years before a generic can piggyback, whereas other countries provide for far less such as 8 years, or in the case of Australia, 5 years.   In a statement, Doctors Without Borders' US manager and legal policy advisor, Judit Rius Sanjauan, argued that:

"Eight years of data exclusivity is still an exceedingly long and unnecessary time to block access to price-lowering competition for this important class of lifesaving medicines and vaccines.   

Pharmaceutical companies already enjoy some of the longest monopoly protections of any industry, and granting them extended and additional exclusivity terms is just another way to delay competition and keep medicines out of reach of MSF medical operations and millions of people. Government representatives meeting this week in Hawaii have an obligation to protect access to affordable medicines."

Samsung lucking out before the CAFC
in staying Smartflash patent dispute

CAFC stays Smartflash's Samsung infringement action pending USPTO decision:  A few weeks ago the AmeriKat reported about Apple's win against Smartflish after US District Judge Gilstrap ordered that a February jury damages award of $532.9 million be vacated.   Last week, Smartflash was again defeated (albeit perhaps temporarily), this time by Samsung.  Last Thursdays, the US Court of Appeals for the Federal Circuit (CAFC) held that the patent infringement action Smartflash brought against Samsung should be stayed pending the Patent Trial and Appeal Board's determination of the validity of Smartflash's patents at issue.  Last spring, the PTAB instituted a Covered Business Method review on Smartflash's patents in suit on the basis that it was "more likely than not" that they were directed to ineligible subject matter.  Apple had also requested a stay of its litigation, but were refused on the basis that their trial had already commenced.  Samsung's trial has not.  Writing the lead opinion, Judge O'Malley wrote that "[d]espite the substantial time and effort already spent in this case, the most burdensome task is yet to come."  Judge Newman dissented arguing that the distinction was not correct given that Apple and Samsung were in the same position with respect to Smartflash's patents:

"The only difference between Apple and Samsung as defendants is that the Samsung case was placed on a later calendar, as the district court reasonably chose to proceed with one case at a time, moving the cases against Google and Amazon even further into the future. But the landscape changed after the Court decided Alice Corporation, and even more so after experience was gained with the CBM section of the America Invents Act. In view of the PTO’s institution of post-grant review of all of the claims in suit, it is fair and just that all of the defendants be treated equally, and thus that the stay be granted to all. From my colleagues’ contrary decision as to Apple, I respectfully dissent."

Judge Newman's dissent continued:

"On continuing with the Apple litigation in the district court, as the panel majority today orders, it is far from clear how the appellate process will proceed. What happens to possibly conflicting rulings? Are we creating another race-to-the-courthouse, where the interests of justice succumb to the fleet of foot, or the deepness of the pocket? This court is already burdened with irregular precedent, as in Fresenius, where a panel sustained the district court’s final judgment of validity and infringement, and then held that since post-judgment damages remained for determination, the Federal Circuit’s affirmance of the district court’s judgment gave way to the Federal Circuit’s sustenance of the PTO’s later determination of invalidity. Fresenius USA, Inc. v. Baxter Int’l,Inc. 721 F.3d 1330, 1344, 1347 (Fed. Cir. 2013) (Newman, J., dissenting)."

For more information, see the articles from The Recorder and Reuters.

On Point address the copyright
of jokes this week

Conan copyright one liners:  As she is currently in Boston, the AmeriKat has been listening to WBUR - Boston's NPR station.  On Thursday, a great little piece on one of her favorite shows, On Point, was aired regarding the copyright position of jokes.  The show came after late night television host, Conan O'Brien (made even more famous by Leno-gate  - see Vanity Fair article here for a fascinating read about that particular incident), was sued by comic Robert Kaseberg alleging that the show had used four of his jokes posted on the Internet during the opening monologue.  See Elmeownora's recent post on similar issues facing Twitter here and to listen to the On Point episode, click here.