Will US Trade Wars Create a Rocky Road for International Patent Rights

by Dennis Crouch

In recent remarks at the 10M patent ceremony, Rep. D. Issa discussed a White House trade meeting focusing on problems caused by weak enforcement of patents in Canada. For Issa, this is emblematic of a global problem with the U.S. patent system.

Just today we had a number of people at the White House [discussing trade disputes] . . . They went over in detail what the courts, for example, for years in Canada did to us. They decided that if you didn’t tell people how important your patent was, with specificity, they would just invalidate your patent. [FB Live Link]

The statement is interesting on many levels — including the ongoing role of intellectual property as an aspect of any trade dispute.  In the same way that countries can raise tariffs on foreign goods, they can also shift the treatment of foreign patent applicants by raising costs or by setting quotas.  While the US has long been a champion of lowering international barriers to patenting, it has also long been a champion of free trade.  For a trade battle, these tools are likely all on the table and so we may see rocky times ahead for the international patent system.

28 thoughts on “Will US Trade Wars Create a Rocky Road for International Patent Rights

  1. 9

    Canada ties pricing an reimbursement of their medicines to whether there is patent protection. This adds a complication.

  2. 8

    Rep. D. Issa –last I looked his biggest campaign contributor was Google.

    He is a bought boy that has done everything possible to burn down the USA’s patent system and continues to propose legislation that further weakens the patent system.

    1. 8.1

      He and Lemley make a good circle of close friends.

  3. 7

    Good grief, who is the USA to be pointing fingers at anyone for weak patent enforcement since the creation of the political TPAB death panel? Can you imagine if China had created such an abomination? We would be screaming to ‘bloody murder’ and trying to kick them out of the WTO. Meh, guess the patent system is working fine for a connected guy like Issa.

  4. 6

    I do not believe that anyone who has signed onto TRIPS can get away with “also shift the treatment of foreign patent applicants by raising costs or by setting quotas.” an important notion there is that treatment under the sovereign’s laws is undertaken without reference as to whether or not the applicant is foreign.

    Thus, there is not (general) support for any such “shift” as indicated with the quoted statement (especially in any trade dispute that would likely be of note, as such would likely involve TRIPS signatories).

    1. 6.1

      Do you think Trump and others all know the difference between a real treaty, like the Paris Convention for equal treatment for patent applications, negotiated by a president but under Article II, Section 2, Clause 2, of the United States Constitution also receiving the advice and consent of a two-thirds super-majority vote of the United States Senate, so as to become a legally binding treaty under international law, especially as enabled by U.S. legislation? I.e., not revokeable just by the whim of a President, unlike most other international agreements?

  5. 5

    Whereas the substantive provisions of the 1973 European Patent Convention, on the patentability of new and useful subject matter, are adopted by ever more countries, the harmonisation of the mechanisms for the courts quickly to enforce good patents and equally quickly to extinguish bad ones is proving ever more problematic.

    The idea in 1973 was to reach a European consensus BOTH on getting to grant AND on getting to injunctive relief from infringement. The former was achieved, and has been a roaring success. The latter not. And still isn’t.

    Rocky road? As seen from Europe? Absolutely. And becoming ever rockier.

    Compared with the hard graft of building things up, to synthesise, to co-operate towards a win-win outcome, to the benefit of all, it is so achingly easy for the populists to lay to waste all that hard work of building consensus and, instead, set people against each other.

    It is beyond me. What exactly does Issa have against Canada, with his:

    “They decided that if you didn’t tell people how important your patent was, with specificity, they would just invalidate your patent”

    I suspect what he doesn’t like about patent law in Canada is that it resembles the patent law found everywhere else in the world than the patent law of the USA. What an affront. Could that be what is riling him so much? Readers?

    1. 5.1

      You wonder as if you do not know, then conjecture as to that very same unknown thing, and project that is “must be” because the US is different…

      Yet again, you open your proverbial mouth and prove something (alas, you seem blithely unaware of what you are proving)

    2. 5.2

      So, from other comments in this thread (thanks guys) it seems that Mr Issa is peeved by the requirement in Canada (and everywhere else in the First to File world) that you need (on pain of revocation) to include in your patent application, on its filing date, a plausible use for your invention.

      Welcome to the First to File world, USA. a world where filings based on pure speculation do not prosper.

      1. 5.2.1

        PiKa wonders and MaxDrei speculates (and then disses someone on “speculating”)…

  6. 4

    Issa is single-handedly establishing a frontier for hypocrisy by politicians. He complains about Canada invalidating patents and Brazil shortening patent term via bureaucracy. Meanwhile his latest proposal is a combination of both – expanding CBM proceedings to all subject matter. He wants anyone, anytime, for any reason to be able to invalidate a U.S. Patent.

  7. 3

    under Mayo-Myriad-Alice, enforcement of almost any patent in the US, in any field, is bad for the patentee.

    Comment below, highlighted here for its ridiculousness.

    There is still tons of eligible stuff to innovate, folks. Maybe less space for “clever” patent attorneys to scriven their way into an easy $10 million but nobody is crying over that except for that eternally whining crowd of grifters.

    1. 3.1

      ..because the patent system has not been under attack***…

      ***leastwise according to the type of “with friends like this, who needs enemies” cognitively dissonantly challenged “cohorts” like Malcolm.

  8. 2

    Isn’t the complaint about “weak enforcement patents in Canada” entirely confined to pharmaceutical patents?

    1. 2.1

      USTR complains about several things in Canada: see link to patentdocs.org

      I wonder if the grievance that “if you didn’t tell people how important your patent was, with specificity, they would just invalidate your patent” is about the promised utility doctrine. If so, a similar utility requirement exists in U.S. patents. The only difference is that you rarely hear U.S. Courts invalidating a claim for lack of utility. It is probably because such ground of invalidity is too difficult to present to a jury, and not easily reviewable on appeal.

      1. 2.1.1

        Don’t put too much stock in what the USTR says, alot of it just bluster…and hypocrisy.

        Enforcement of pharma patents in Canada is indeed bad news for the patentee. But then, under Mayo-Myriad-Alice, enforcement of almost any patent in the US, in any field, is bad for the patentee. Ironic of Issa to be calling out Canada when he’s got a mess at home (a mess that he in part helped to create).

      2. 2.1.2

        You do not hear much about utility challenges in America for a reason: can you imagine an accused infringer’s invalidity defense for lack of utility against the patent claiming an invention that he is exploiting?

        1. 2.1.2.1

          Sloppy language in my previous post. The defense is not that the invention lacks utility, it is that the application does not set forth the utility of the invention/the inventor was not in possession of the utility of the invention at the time of filing. Maybe it is a 112 issue after all, not a 101 issue.

        2. 2.1.2.2

          “Imagine an accused infringer’s invalidity defense for lack of utility against the patent claiming an invention that he is exploiting?”
          Great way to prove a point about the unimportant 101 “new and useful” “utility” requirement Ron.
          Also, has anyone here ever received a single Patent Examiner rejection of any application for lack of utility in either the U.S. or Canada? [Is there is one old Sup. Ct. decision about chemical “intermediates?”] I even noted the US PTO issuing a patent to someone on a “perpetual motion machine” once [the epitome of un-useful], and they refused to take any action on my reported complaint about it!

          1. 2.1.2.2.1

            My understanding is that Canada invalidates patents when the inventor says in the patent that the invention may be used for X, and the invention can not always be used for X.

            1. 2.1.2.2.1.1

              PiKa: “Canada invalidates patents”

              But it is the claim that must be invalidated; you are right back at the same point on which I commented above. If a claim recites an instance of the “use of X” and no such use is possible, than there would be no infringer of the claim who would care to invalidate it for lack of utility.

          2. 2.1.2.2.2

            [H]as anyone here ever received a single Patent Examiner rejection of any application for lack of utility…?

            Yes. See US 14/384,577. That case still makes me shake my head in exasperation every time I think about it.

      3. 2.1.3

        As contemplated, the utility prong was meant to be an extremely low bar.

        1. 2.1.3.1

          As contemplated, the utility prong was meant to be an extremely low bar.

          But it’s not as low as “anything that is not useless to everybody”.

          1. 2.1.3.1.1

            That’s a pretty strawman.

            Vacuous, but pretty.

        2. 2.1.3.2

          Re “low bar”, I did once hear one former lontime PTO official [I won’t mention his name since he is a nice guy] say, as to utility, “could it be used as a paperweight?” I do not think he was being entirely facisious.

      4. 2.1.4

        I thought the DNA listing discoveries – I claim a novel (discovered) sequence – fails the US utility requirement. Anybody? I guess now it fails under Mayo too – for being naturally occurring?

  9. 1

    Issa…

    Stultifying.

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