As we change the calendar to 2021, how accurate were the 2020 predictions made in the intellectual property (IP) space, and what can we expect in the coming year?
Last January, we explored several evolving areas of IP law and policy. First, we anticipated that patent eligibility issues would continue to occupy the attention of Congress as, in 2019, bipartisan, bicameral legislation designed to overturn a key 2014 Supreme Court decision advanced in both the House and Senate. Unfortunately, those measures withered on the vine during the annus horribilis of 2020 — an election year overwhelmed by a pandemic.
Second, we predicted that other legislative patent reform would advance further with 2019 seeing the introduction of bills such as the STRONGER Patents Act, the TROL Act, and efforts to bolster patent quality. Those, too, came to naught in 2020 as senators and congressmen focused on their own reelections.
Finally, we expected issues of artificial intelligence (AI) and patenting to move to the forefront as machines continued to innovate autonomously. Those issues indeed advanced, and while the effort to obtain recognition of the first computer-generated invention has not yet been successful, we can surmise that this question will continue to interest patent offices and policymakers.
Not the strongest track record, but what can we expect in 2021? The following issues are likely to move forward in the coming year.
COVID-19 and IP issues
No one in January 2020 could have predicted how fundamentally the world would be affected by the COVID-19 pandemic, but once the novel coronavirus emerged in all its glory, it was inevitable that it would challenge the IP status quo in several realms. As we explored earlier, pharmaceutical giants like AbbVie faced heavy pressure back in March and April to loosen their enforcement of patents covering COVID-19 treatment drugs. And as a miraculous vaccine has begun to slowly lift the world out of its doldrums, many of the usual IP critics have trained their fire on the patent portfolios of the innovators who developed it. Expect further and perhaps intensified debate over vaccines and patent protections, especially if a large inoculation rate gap opens between the developed and developing worlds.
Trademark reform
Smuggled into the omnibus spending package that President Donald Trump signed into law in late December was a significant change to the trademark statute known as the Trademark Modernization Act of 2020 (TMA). Among other things, the TMA provides new procedures for third parties to submit evidence challenging trademark applications, establishes new proceedings to reexamine registered trademarks, and creates a presumption of irreparable harm when trademark infringement is found, which will lead to the issuance of more injunctions against infringers. In 2021, we can expect increased trademark filings in the US by foreign and domestic applicants as well as increased litigation.
Artificial intelligence in IP
As explained above, an intrepid group of inventors, attorneys, and legal philosophers have set their sights on persuading patent offices worldwide — and the legislators that enact the statutes and regulations that govern them — to award inventor status to computers that devise new, useful, and non-obvious innovations. While the issue may seem academic, it has real-world consequences: In a new book, law professor and machine invention advocate Ryan Abbott reports that German conglomerate Siemens recently had to renounce patent protection on automotive and other AI-created inventions because of current law. Expect the US Patent and Trademark Office to explore this issue further in 2021, and perhaps Congress as well.
Bonus content: Legislative reform, at long last?
Finally, while we have long predicted — with only modest success thus far — the advance of legislative patent reform, those efforts do appear poised to move forward in 2021 as a new Congress (possibly under unified Democratic control) seeks to make its mark by enacting measures with bipartisan support. Patent litigation reform and changes to the eligibility regime have simmered for long enough and — you heard it here first — 2021 will mark the year they finally come to fruition.
https://www.aei.org/technology-and-innovation/intellectual-property-policy-2020-results-2021-predictions/?mkt_tok=eyJpIjoiTlRFNU1UVmlOREpsWWpReSIsInQiOiJ6eGt6Yk1rTXBzUm80dzR5R2ZCQ3JwY3BpUWpBMHNWcURXdmlrVnZCZjluNnZocGFpTHNTeW4wZWRkVkRLZDVTcUVnRTFTWW5SVGhFWUpoQ3ZKcGtcL1VleFU3RVwvbWJzcEFvZG1sTWIyZENlK3lQUWE3SlErc3VFZ3lmb1pzc2YrIn0%3D