Wednesday, October 22nd, 2014

The Obameter

Update copyright and patent law


Will "update and reform our copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated."


Updates

Progress on patents

In his presidential campaign, President Barack Obama promised to "update and reform our copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated."

As we explained in our last update, the America Invents Act was passed in September 2011, which made drastic changes to the patent system. One major change was that beginning March 16, 2013, patents will be awarded on a "first-to-file” basis, meaning that in most cases, the first individual to file a patent for an invention will receive the patent.

Previously, patents were awarded to the first company or individual to invent a product, even if they filed the patent later than another company.

And according to a Sept. 17, 2011 article from the technology website CNET News by Leigh Martinson, a lawyer focusing on patent litigation, the act will also benefit individual inventors. Martinson explained that individuals can now qualify as "micro entities” under the act. Patent fees for these entities are far less than what large companies would pay, and Martinson says that if "an inventor took full advantage and filed four applications that ultimately issued, the inventor stands to save over $30,000 in official fees over the life of the four patents.”

But does the act "promote civic discourse, innovation and investment” and ensure "that intellectual property owners are fairly treated” as Obama promised?

We spoke to James Yang, a patent lawyer based in California. He told us that while the law does have some positive aspects, it "just kind of mixes things up” instead of truly reforming the system. Yang singled out one part of the law, the post-grant review process, which he feels promotes civic discourse as Obama promised.

Yang explained that the process allows anyone to file a petition with the U.S. Patent and Trademark Office if they feel that a patent should not have been awarded. Yang feels that post-grant review will allow more voices to be heard in the patent process, which he said he views as positive.

John Dragseth, a lawyer at Fish & Richardson, a law firm specializing in intellectual property, agreed with Yang"s assessment of the law.

"Overall the legislation put some much needed reform in place,” Dragseth said in an email. "Is it perfect?  No.  Are there parts that greatly improve our patent system?  Yes.”

While significant action has been taken to reform the patent system, there hasn"t been as much progress with the copyright system.

In 2011, two bills, the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), were proposed in Congress as a way to combat piracy and protect against copyright infringement.

Online opposition to both bills turned out to be fierce, with websites like Wikipedia blacking out on Jan. 18, 2012 in protest. The Electronic Frontier Foundation, an advocacy group in support of free speech on the internet, said in a brief that SOPA could give "individuals and corporations unprecedented power    to silence speech online” and "give the government even more power to censor.”

The Obama administration came out in opposition to the bill, and on Jan. 20, 2012 Senate Majority Leader Harry Reid and House Judiciary Committee Chairman Lamar Smith both agreed to postpone votes on the bills until a later date. According to a Jan. 20, 2012 New York Times article, "privately, Congressional aides and lobbyists say the pressures of an election year make action this year unlikely” on either bill.

Kenneth Crews, director of the Copyright Advisory Office at Columbia University, said that even if SOPA or PIPA had passed, the bills would have actually done the opposite of what the president promised in his campaign.

"The fact that no bill has gone forward may be one of the most important things he"s done to further his promise,” Crews said. "Passing these bills could actually undermine his objective.”

So, while not much has been done to reform the copyright system, Crews said that "it could have been much worse.”

Over the past four years, the Obama administration has updated the patent system and added some positive reforms, but it has yet to reform the copyright system in a comprehensive way. With the administration having achieved half of its goal, we rate this promise Compromise.
 

Sources:

Email interview with John Dragseth, principal at Fish & Richardson law firm

Interview with James Yang, patent lawyer.

Interview with Kenneth Crews, director of the Copyright Advisory Office at Columbia University

Leahy-Smith America Invents Act - Public Law 112-29, full text

Stop Online Privacy Act, full text

PROTECT IP Act, full text

CNET, "The American Invents Act and the individual inventor,” Sept. 17, 2011.

CNET, "White House calls for new law targeting offshore web sites,” March 30, 2012.

Electronic Frontier Foundation, "What"s Wrong With SOPA?

Fast Company, "Untangling The Real Meaning of ‘First-to-File" Patents,” March 6, 2012.

CBS News, "SOPA, PIPA: What You Need To Know,” Jan. 18, 2012.

CBS News, "PIPA, SOPA put on hold in wake of protests,” Jan. 20, 2012.

New York Times, "After an Online Firestorm, Congress Shelves Antipiracy Bills,” Jan. 20, 2012.

White House, "2011 U.S. Intellectual Property Enforcement Coordinator Annual Report on Intellectual Property Enforcement,” March 2012.  

White House Office of Science and Technology Policy, "Request for Information on Public Access to Digital Data and Scientific Publications,” Nov. 7, 2011.

 

Patent law under review, copyright front is quiet

As we reported in Promise 398 , Congress is considering a patent law overhaul, but has not yet voted on a final bill. The copyright front has been fairly quiet, however. The most significant legislation we were able to find involving copyright focused on satellite television, not overall copyright issues.

On Dec. 15, Vice President Joe Biden hosted a round table on enforcing laws that protect intellectual property against piracy. Biden was joined by other officials, including Commerce Secretary Gary Locke, Attorney General Eric Holder, Homeland Security Secretary Janet Napolitano, and FBI director Robert Mueller, as well as CEOs from major media companies, union representatives and legal experts. The White House said the meeting brought together stakeholders "to discuss ways to combat intellectual property piracy in this rapidly changing technological age ."

This isn't to say that everyone interested in copyright is happy with the administration's approach, especially groups who believe that copyright law needs to take into account the need for public discourse and innovation. In April, a group that included libraries and public interest organizations asked the Obama administration to appoint officials who "reflect the diversity of stakeholders affected by IP (intellectual property) policy, and that your administration create offices devoted to promoting innovation and free expression within the relevant agencies."

Still, because of the progress on patent laws and the meeting on enforcing copyright laws, we rate this promise In the Works.

Sources:

U.S. Department of Commerce, Secretary Locke Joins Vice President Biden in White House Roundtable on Enforcing Laws Against IP Piracy , Dec. 15, 2009


U.S. Copyright Office, Copyright Legislation in the 111th Congress , accessed Dec. 30, 2009

Public Knowledge, Nice Thoughts and Naughty Thoughts About Broadband , Dec. 23, 2009

Public Knowledge, Letter to President Obama on copyright appointments , April 2, 20090

CNET, Copyright debate heats up over Obama appointments , April 20, 2009

Copyright Alliance, The Creators" Letter to President Obama , April 20, 2009

Thomas, S 515 , accessed Dec. 28, 2009

Congressional Quarterly, Commerce Department Negotiates Patent Law With Judiciary Chairmen , Oct. 30, 2009 (subscription required)

The New York Times, op-ed, Inventing a Better Patent System , Nov. 16, 2009

The New York Times, letters to the editor, A Fresh Look at Patents and Innovation , Nov. 28, 2009

PatentDocs blog, posts on patent legislation