1800 M Street NW | 5th Floor | Washington D.C. 20036 Tel: (202) 327-8100 | Fax: (202) 327-8101

PATENT & TRADEMARK POLICY REPORT JUNE 25, 2021

I. Congressional Developments: Headlines and Highlights:

• On Tuesday, the Senate Judiciary IP Subcommittee held a hearing on “Protecting Real Innovations by Improving • Senate Judiciary IP Patent Quality.” Subcommittee Chairman Patrick Leahy Subcommittee holds hearing (D-VT) began the hearing by stating his belief that on improving patent quality. patents are a powerful tool and an important part of our legal system. He mentioned Vermont’s experience with • In 5-4 decision in the bad patents, the Theranos scandal, and the recent Arthrex case, Supreme Supreme Court decision in the Arthrex case. He stated Court holds that the that preventing poor patents from ever being issued is unreviewable authority just as important if not more so than rescinding bad wielded by APJs during IPR patents and reemphasized the bipartisan nature of the is incompatible with their issue. Ranking Member Thom Tillis (R-NC) thanked appointment by the Chairman Leahy for his comments and echoed his call Secretary to an inferior for bipartisanship, saying that improving patent quality office. is crucial for our economic success. He spoke about his concerns with the amount of overbroad patents being • CBP agents seize 66 boxes issued and gave insights into some of his of counterfeit vape pens recommendations such as eliminating fee diversion and coming into Atlanta from creating a “gold-plated” patent. Next, the following China. witnesses testified before the subpanel: Ms. Bridget Asay, Partner, Stris & Maher LLP; Mr. Julio Garceran, • USPTO to host virtual event Chief Intellectual Property Counsel, Cree, Inc.; Mr. to celebrate LGBTQ+ Troy R. Lester, Vice President Patents, Acushnet innovators next week. Company; and Mr. Jorge L. Contreras, Presidential Scholar and Professor of Law, S.J. Quinney College of • Amazon joins Asmodee Law, University of . Each witness was a proponent Group to file a joint of improving patent quality and limiting overbroad complaint in Seattle federal patents and “patent trolls”. Finally, Senators Leahy (D- court against a seller for VT), Tillis (R-NC), Coons (D-DE), Blackburn (R-TN), allegedly selling a and Hirono (D-HI) participated in the question-and- counterfeit game. answer portion of the hearing. Watch the full hearing here. • EU opens a formal antitrust investigation into Google’s 1 brokering of advertisements and sharing of user data.

• During a 27-hour markup this week, the House Judiciary Committee reported six bills – with bipartisan support – to the floor. While most Democratic Members voted in favor of each bill, most of the bills faced opposition from the California Representatives. Further, on the Republican side, Ranking Member of the Antitrust Subcommittee (R-CO) and (R-FL) supported each bill. Additionally, other Republicans such as (R-TX), (R-IN), and Burgess Owens (R-UT) broke with their party on some of the bills. The following bills were reported favorably out: The Ending Platform Monopolies Act (H.R. 3825); Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act of 2021; The Platform Competition and Opportunity Act of 2021 (H.R. 3826); American Choice and Innovation Online (H.R. 3816); State Antitrust Enforcement Venue Act of 2021 (H.R. 3460); the Merger Filing Fee Modernization Act of 2021 (H.R. 3843); and the American Choice and Innovation Online Act (H.R. 31816). More info. here.

II. Administration Updates:

• On June 16th, U.S. Customs and Border Protection (CBP) agents seized 66 boxes of counterfeit vape pens coming into Atlanta from China. Similar pens properly licensed would have a manufactured suggested retail price of more than $590,000.00. Paul Rivera, CBP Port Director-Atlanta, raised concern that such counterfeit merchandise could “pose a serious risk to the consumer,” and it is one of his agency’s primary missions to intercept it. Read more here.

III. USPTO Updates:

• On June 29th, from 1:00 – 3:20 p.m. ET, USPTO is hosting a virtual event to celebrate the remarkable work of LGBTQ+ innovators. Find an agenda and register online here.

• On June 30th, from 1:00 – 2:30 p.m. ET, USPTO and CBP will host a free webinar on how to enforce IP rights domestically and abroad. Register online here.

• USPTO has issued a NPRM to amend the rules of practice to permit the submission of physical media larger than compact discs for electronic versions of amino acid and nucleotide sequence information, information compiled in a large table, and information relating to a computer program listing. Comments to the NPRM are due by July 26th. More info. here.

• USPTO is seeking nominations for the 2021 National Medal of Technology and Innovation (NMTI). The NMTI is the nation’s highest honor for technological achievement and is presented to recipients by the President of the United States at a White House ceremony. Nominations are due by July 30th. More info. here.

IV. Judicial Updates:

• On Monday, the Supreme Court issued a 5-4 decision in the United States v. Arthrex Inc. case. Chief Justice Roberts delivered the majority opinion, holding that the unreviewable authority wielded by Administrative Patent Judges (APJs) during inter partes review is incompatible with their appointment by the Secretary to an inferior office. However, the high court took a different approach than the U.S. Court of Appeals for the 2

Federal Circuit (CAFC) in fixing the problem. Chief Roberts’ opinion gives the USPTO Director the power to review final decisions. Read more here and here.

V. International Updates:

• On Tuesday, the European Union opened a formal antitrust investigation into Google’s brokering of advertisements and sharing of user data. Officials will examine whether the search giant favors its own ad-buying tools in the advertising auctions it runs. Read more here.

VI. Industry Updates:

• On Thursday, Amazon and board game publisher Asmodee Group filed a joint complaint against an Amazon seller in Seattle federal court for allegedly selling a counterfeit version of the card game “Dixit”. In a press release announcing the lawsuit, Amazon Counterfeit Crimes Unit Director Kebharu Smith asserted, “If a counterfeiter attempts to take advantage of our customers or partners like Asmodee, our Counterfeit Crimes Unit will hold them accountable through civil litigation or criminal referral to law enforcement.” The suit is the latest in a string of legal actions that the e-commerce giant has brought jointly with brands such as Yeti and Valentino against alleged counterfeiters on the site. Read more here and here.

3