An Eventful Week For IP Policymaking In The United States

The United States’ search for ways to spark its job growth has led to a focus on intellectual property rights, and this week several significant developments boiled over.

The US Patent and Trademark Office earns significant revenue each year from the fees for processing patent applications and other services. The US Congress has in recent years taken some of those earnings and redirected them for other purposes. This year, USPTO Director David Kappos was able to recapture roughly $129 million, but this week learned that Congress had taken a remaining $70 million that USPTO officials had said was key to plans to boost jobs at the patent office and externally. The US fiscal year ends on 30 September.

The American IP Law Association (AIPLA), American Bar Association Section of Intellectual Property Law, and the Intellectual Property Owners Association sent a letter to Congress asking it to “establish a mechanism to ensure that all of the user fees the USPTO collects remain at the Office, thus stabilizing and adding much-needed predictability to the United States’ intellectual property system,” according to an AIPLA release. Sustainable funding would enable the USPTO to hire more patent examiners, improve the information technology system and make progress on the “massive” patent application backlog, it said.

Seemingly undaunted, the USPTO today announced, effective immediately, the reorganisation of its operational structure, aimed at strengthening management, communications and policy along the lines of its draft 2010-2015 strategic plan. The final version of the plan is due out in the coming weeks, according to the USPTO. The new organisational chart is available here [pdf].

“These organisational changes will enable us to better achieve our goals of reducing patent pendency and bringing innovation to market sooner, while strengthening the appeal process, promoting a more diverse workplace, and enhancing the Agency’s critical communications and outreach functions,” Kappos said in a statement.

The reorganisation will not increase the full time staff at the office, it said. Changes include the establishment of a new Office of the Chief Communications Officer and a new Office of Equal Employment Opportunity and Diversity. These replaced previous offices with similar functions and create separate organisations reporting directly to the director (who is also undersecretary of Commerce) and represented on the agency’s Executive Committee, according to a press release.

The change also transfers patent and trademark appeals to the undersecretary’s office from the General Counsel’s office, and creates an Associate Commissioner for Innovation Development, plus reworks the Office of Administrator for Policy and External Affairs.

US-Russia Bilateral Trade Talks

Meanwhile, the Office of the US Trade Representative announced today a breakthrough with Russia in their bilateral talks toward Russian accession to the World Trade Organization.

Resolution of bilateral issues includes improvements and a commitment by Russia on the protection of intellectual property rights, USTR said, an issue that long caused friction in the relationship.

“[T]he Russian Federation has enacted amendments to laws related to the protection of IPR, to reflect relevant WTO requirements and earlier commitments made to the United States on IPR,” USTR said. “The United States welcomes this important step, which also contributes directly to completion of the WTO accession process, and looks to the effective implementation of these new laws in accordance with bilateral understandings and WTO requirements.”

Still, the work is not over, as USTR indicated: “Ongoing and vigorous efforts will be required with respect to a number of important areas, such as the enforcement of intellectual property rights,” among others.

Just weeks ago, word emerged that Russia had been using IP protection and Microsoft to crack down on non-governmental organisations. It is not clear whether USTR’s announced resolution includes safeguards against this type of behaviour, though it does include measures on transparency.

In recent weeks, USTR officials have made visits to rights holder groups and highlighted strong enforcement of IP rights.

Anti-Piracy Legislation Creates Furor

A particularly volatile piece of legislation introduced into the US Senate last week by Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, would give the government the ability to shut down websites accused of infringing IP rights. This week, the debate escalated as technology industry representatives went to work trying to derail the bill, known as the Combating Online Infringement and Counterfeits Act, with some calling the bill a basic form of censorship.

Under the proposed legislation, the Justice Department would file a civil action against accused infringing domain names, according to CNET news. If the domain name is US-based, the attorney general could then request a court to find that the domain name in question is dedicated to infringing activities, it said.

Negative on Net Neutrality

Also in Congress, Representative Joe Barton of Texas, the lead Republican on the House of Representatives Energy and Commerce Committee said he would withhold his support for an internet neutrality proposal introduced earlier in the week by Committee Chairman Henry Waxman, a California Democrat, according to a Waxman press release.

Waxman’s Net neutrality proposal would have prohibited wired broadband providers from “unjustly or unreasonably” discriminating against legal internet traffic, according to CNET news. A similar proposal was put forward by Verizon Wireless and Google last month.

Microsoft Files Case v. Motorola

And on the legal side, software maker Microsoft filed a legal action in the International Trade Commission (ITC), as well as in US District Court for the Western District of Washington against Motorola for alleged infringement of nine Microsoft patents within Motorola’s Android-based smartphone products. The patents relate to key aspects of the user experience, Microsoft said in a statement, such as synchronizing email, calendars and contacts, scheduling meetings, and notifying applications of changes in signal strength and battery power.

The “key value proposition of smartphones has moved from the radio stack to the software stack, as people buy smartphones because they are fully functional computers that fit in the palm of your hand,” Horacio Gutierrez, Microsoft corporate vice president and deputy general counsel of intellectual property and licensing, said in his blog. “The rules of the road are long-established in the software industry, and fundamental to the industry’s growth and economic impact is respect for others’ intellectual property rights.”