Patent, Trademark & Copyright : Law Office of Kloss, Stenger & LoTempio

President Obama issued on February 8, 2011 an Executive Order called "The Establishment of the Intellectual Property Enforcement Advisory Committees," establishing two intellectual property enforcement advisory committees designed to improve the Federal Government’s intellectual property enforcement efforts.

The Enforcement Advisory Committee shall develop a Strategic Plan as provided for in title III of the PRO IP Act.

The President's issuance of the Executive Order is evidence that there is a growing awareness of the commercial importance of intellectual property laws and the need to strengthen the enforcement of the laws designed to protect and foster America's inventiveness and creativity.

The executive order states that in the development and implementation of the Joint Strategic Plan, the heads of the departments and agencies shall share with the Coordinator of the Intellectual Property Enforcement Advisory Committee and the other members of the Enforcement Advisory Committee relevant department or agency information such as: 

• (A) plans for addressing the Joint Strategic Plan;


• (B) statistical information on the enforcement activities taken by that department or agency against counterfeiting or infringement; and


• (C) recommendations to enhance cooperation among Federal, State, and local authorities responsible for intellectual property enforcement.

The Senior Advisory Committee shall be composed of the Coordinator, who shall chair it, and the heads of, or the deputies to the heads of: 

1. The Department of State;


2. The Department of the Treasury;


3. The Department of Justice;


4. The Department of Agriculture;


5. The Department of Commerce;


6. The Department of Health and Human Services;


7. The Department of Homeland Security;


8. The Office of Management and Budget; and


9. The Office of the United States Trade Representative

The $64,000 question is whether not this committee will actually do anything. It seems like committees are constantly being formed to vote on things to do in the future. For example the Senate Judiciary Committee voted recently to send bipartisan patent reform legislation to the full Senate. This was announced by the Senate Judiciary Committee Chairman Sen. Patrick Leahy on February 3, 2011.

I spoke with Leahy press contact David Carle on the telephone today and I asked him when did he expect it to go to the full Senate. He said that Patent Reform has been kicking around for years and it was just recently voted on by the committee and he didn't appear to have any idea when it might actually go before the Senate. His tone of voice seemed to say that to ask "when" at this early juncture is a little bit ridiculous.

I guess that's just the way things work in Washington one committee after the next kicking it around. The wheels of progress keep rolling along. But at least the politicians that we've elected are discussing patent reform and the importance of protecting intellectual property rights.

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What is happening with regard to the Patent Reform Act of 2010?

Recently I asked this and other questions to first term Congressman Chris Lee, who represents New York's 26th Congressional District.

I think it's important to note that Chris Lee, true to his pro-entrepreneurial stance, has taken the initiative to advocate for Research and Development by introducing legislation in Congress. As evidence of his commitment to inventors and the need to continue to develop new products and technologies, he introduced legislation that would make the R&D tax credit permanent (H.R. 1545).

Here are a few questions and answers from the interview with Congressman Lee:

1. What will it take to get the patent reform bill through both the House and the Senate?

Versions of the bill have been introduced in both the House and Senate (H.R. 1260 in the House, S.515 in the Senate). The Senate Judiciary Committee has passed the bill and the House Judiciary Committee has held hearings on it. It will need to pass both committees and both chambers of Congress for it to be sent to the president.

2. Do you think it can be accomplished anytime soon?

It looks like the bill is moving forward. On March 4, 2010, Senators Patrick Leahy (D-VT), Jeff Sessions (R-AL), Orrin Hatch (R-UT), Chuck Schumer (D-NY), Jon Kyl (R-AZ), and Ted Kaufman (D-DE) released a statement saying that they’re moving forward on an agreement that, according to the release, “makes changes to first-window post-grant review, inter partes review, willfulness, interlocutory appeals, Patent and Trademark Office funding, and supplemental examinations.” According to the Senators, the proposed “agreement retains several critical improvements in the Committee-reported bill, including the transition to a first-inventor-to-file system, the gatekeeper compromise on damages, the new district court pilot program, and more.”

3. Does the entire bill have to pass or can parts of it be pushed through?

The Chairmen of the House and Judiciary Committees can choose to move forward the entire bill or split it into parts, however an identical version of the bill must be passed by both the House and the Senate. According to the March 4 statement, it appears as though the Senate Manager’s Amendment makes changes to makes changes to first-window post-grant review, inter partes review, willfulness, interlocutory appeals, Patent and Trademark Office funding, and supplemental examinations as they are stated in the Senate-introduced version of the bill.

4. What do you think about patent reform and its importance in protecting and advancing technology in the United States and the world?

Having run a manufacturing business before coming to Congress, I understand how much time, money, and resources are required to develop new products and technologies. I fully understand the need to protect the ownership rights for the development of these items. Without an adequate time frame to recoup your investment the development of Intellectual property could be dramatically curtailed.

It remains to be seen what the final version of the bill will be, should it be brought before the House for a vote. In the United States, we need to continue to develop new products and technologies, and I’ve introduced legislation that would make the R&D tax credit permanent (H.R. 1545). If individuals and companies invest in these technologies they must be able to realize the benefits of their investments. Therefore, I believe it’s critical that any patent reform legislation must effectively protect the ownership of patents. 

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