Welcome to The SNIP, a monthly newsletter by Urška Petrovčič, Adam Mossoff, and Devlin Hartline of Hudson Institute's Forum for Intellectual Property. The SNIP offers a brief breakdown of the latest policy issues and case developments in intellectual property. 

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THE LATEST FROM HUDSON

Hudson Hosts Online Panel Event on Drug Patents

On April 15, Hudson Institute hosted a panel discussion, “Drug Patents and Evidence-Based Policymaking in Patent Law,” that focused on the prevalence of misleading rhetoric and unreliable data in the drug patent policy debates. Hudson Senior Fellow Urška Petrovčič led the discussion with three expert panelists: Hudson Senior Fellow Adam Mossoff, Former Director of the U.S. Patent and Trademark Office David Kappos, and Professor Erika Lietzan. The panelists discussed the meaning of “patent thickets” and “evergreening,” why allegedly high prices for insulin are not caused by patents, and the unreliability of the widely cited drug patent numbers issued by I-MAK. Notably, I-MAK has refused to disclose its dataset or explain its methodology after Senator Thom Tillis (R-NC) requested that it do so for the purpose of ensuring evidence-based policymaking.

The SNIP: A Hudson Institute panel discussion addressed unreliable patent numbers by I-MAK and misleading rhetoric in the drug patent policy debates.

Learn More:

• WATCH: “Virtual Event: Drug Patents and Evidence-Based Policymaking in Patent Law,” Hudson Institute (April 15, 2022).

• READ: “Unreliable Data Have Infected the Policy Debates Over Drug Patents,” Adam Mossoff, Hudson Institute (January 19, 2022).

• READ: “Tillis Wants More Info on I-MAK and Other Data Driving Anti-Patent Narratives Around Drug Pricing,” Eileen McDermott, IPWatchdog (February 1, 2022).

Hudson Hosts Webinar on the Controversial Policy Statement on Standard-Essential Patents

On April 20, Hudson Institute welcomed three panelists—the Honorable Deanna Tanner Okun, Stephen Susalka, and Professor Kristen Osenga—to discuss the draft policy statement on the licensing and enforcement of standard-essential patents released by the U.S. Department of Justice in December 2021. The panelists explained how the draft policy statement would encourage opportunistic practices by implementers of standardized technologies in high-tech devices. They further explained the negative effects this would have for national security, innovation, and U.S. technological leadership.

The SNIP: Hudson Institute held a webinar to examine the problems with the Justice Department’s draft policy statement on standard-essential patents.

Learn More:

• WATCH: “Understanding the Controversial Draft Standard-Patent Policy,” Hudson Institute (April 20, 2022).

Hudson Co-Sponsors Online Panel Celebrating World IP Day

On April 26, Hudson co-sponsored an online webinar commemorating World Intellectual Property Day 2022 with the Information Technology and Innovation Foundation, Geneva Network, Property Rights Alliance, U.S. Chamber of Commerce, and others. The webinar sought to bring awareness to the crucial role of intellectual property (IP) rights in encouraging innovation and creative artistic works in today’s world. Speakers from a variety of IP-related areas discussed the challenges the American IP system is facing, including in the context of technological advancements, law, and policy.

The SNIP: Hudson Institute co-sponsored a World Intellectual Property Day webinar where innovators and creators discussed the importance of IP rights and policy.

Learn More:

• WATCH: “IP Stories: Innovating for a Better Future (A World IP Day Event),” ITIF (April 26, 2022).

CASE DEVELOPMENTS

Supreme Court to Hear Case on Transformative Fair Use

The U.S. Supreme Court recently granted cert in a case addressing the nature of the fair use defense in an infringement lawsuit. Andy Warhol Foundation v. Goldsmith addresses the question whether Andy Warhol infringed the copyright of photographer Lynn Goldsmith when using one of Goldsmith’s photographs of the musician Prince without authorization. Warhol altered the colors in the photo, and the issue is whether this alteration was sufficient to constitute a “transformative” use under the fair use defense. The trial court found in favor of Warhol that his alteration of the photography constituted “fair use,” but the U.S. Court of Appeals for the Second Circuit reversed, holding that the alterations were not sufficient under the four-factor fair use defense to immunize Warhol from liability.

The SNIP: Supreme Court to decide significant copyright case assessing whether Andy Warhol’s unauthorized use of a photograph of Prince is sufficiently transformative to immunize Warhol under the fair use defense.

Learn More:

• READ: “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith,” SCOTUSblog.

• READ: “US Supreme Court Will Hear Dispute Over Andy Warhol’s Use of Photographer’s Image of Prince,” Martha Lufkin, Art Newspaper (March 29, 2022).

• READ: “Supreme Court to Hear Copyright Right Over Andy Warhol’s Images of Prince,” Adam Liptak, New York Times (March 28, 2022).

LEGISLATION & POLICY DEVELOPMENTS

Kathi Vidal Confirmed as Director of the U.S. Patent and Trademark Office

After the longest period in modern history in which the U.S. Patent & Trademark Office (USPTO) did not have a Director, the Senate confirmed Kathi Vidal as Director on April 5. At her confirmation hearing, Director Vidal acknowledged a need for greater clarity in patent eligibility doctrine and voiced some concern about the quality of drug patents. In her first official act, Director Vidal began the formal process to put into place the Director appeal process from the Patent Trial & Appeal Board that the Supreme Court created in its decision last year in United States v. Arthrex.  Although some critics have expressed concerns given her past representation of Big Tech clients as an attorney at Winston & Strawn, she is widely respected as a highly experienced patent attorney who has a deep working knowledge of the patent system.

The SNIP: Kathi Vidal was confirmed as Director of the USPTO and she immediately instituted regulatory reform of the PTAB in response to the Court’s Arthrex decision last year.

Learn More:

• READ: “Senate Approves Kathi Vidal for Patent and Trademark Office,” Samantha Handler, Bloomberg Law (April 5, 2022).

• READ: “IP Stakeholders Cheer as Senate Finally Confirms Vidal to Head USPTO,” Eileen McDermott, IPWatchdog (April 5, 2022).

• READ: Biden Pick Vidal Confirmed for Empowered Patent and Trademark Chief Role, Reuters (Apr. 6, 2022).

• READ: “Winston & Strawn Partner Kathi Vidal Confirmed as Undersecretary of Commerce for Intellectual Property and as Director of the United States Patent and Trademark Office,” Winston & Strawn Press Release (April 5, 2022).