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May 04, 2017

Comments

As I said on PatentlyO:

From the report:

“In virtually all countries identified in this Report, IP enforcement is lacking.”

“U.S. innovators face challenges including restrictive patentability criteria, that undermine opportunities for export growth in countries such as Argentina, Canada, India, and Indonesia.”

“In addition, the United States continues to have serious concerns about the lack of clarity in, and the impact of, utility requirements for patents imposed by Canadian courts. In these cases, courts have invalidated valuable patents held by U.S. pharmaceutical companies on utility grounds by interpreting the “promise” of the patent and finding that insufficient information has been provided in the application to substantiate that promise. These decisions, which have affected products that have been in the market and benefiting patients for years, have led to uncertainty for patent holders and applicants, including with respect to how to effectively meet this standard.”

I think those same criticisms can be made of the current state of the US patent system, post-eBay, post-Mayo/Myriad/Alice and during the IPR regime of the AIA.

So I have to ask, when is the USTR going to add the USA to the priority watch list? If it has no plans to do so, then why does it waste taxpayer money engaging in naked hypocrisy?

Hey Kevin,

As someone commented on Patently-O with respect to this same U.S. Trade Representative Special 301 report, it would ironic (yet appropriate) if one of those countries on that Special 310 list brought an action against the US in the International Court in the Hague for violation of TRIPS because of SCOTUS’ Mayo/Alice framework. Indeed, one of the amicus briefs from Europe essentially said as much in support of Sequenom’s failed petition for cert, noting that Sequenom’s claims had passed must in Canada, Europe, Japan and Australia without batting an eye at the patent-eligibility issue. As that commenter also noted, I suspect that Congress in response to such an action would fix 35 USC 101 PDQ. Not only is SCOTUS an embarrassment in properly construing fundamental patent statutes, it is putting the US at huge risk of being deemed in violation of its treaty obligations under TRIPS.

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