Keynote address at the Opening Plenary session of the American Intellectual Property Law Association’s (“AIPLA”) Virtual Spring Meeting
May 10, 2021
Good afternoon and thank you to the American Intellectual Property Law Association for inviting me to speak to you all today. It is an honor to help you kick off this year’s Virtual Spring Meeting.
As intellectual property practitioners, each of you plays a part in a tradition that is centuries old and considered so essential that the Founders placed it in the Constitution. What began as a clause granting Congress the power to promote the sciences and arts has blossomed into an IP system that has been integral to our country’s success.
That success is evident in numbers alone. Recent estimates show that IP-intensive industries support forty-five million U.S. jobs and contribute more than six trillion dollars to the economy. It is unequivocal that intellectual property and innovation are what help our country flourish.
When the Founders penned the Constitution, they could not have imagined the breadth and depth of today’s IP system. But the foundational idea that innovation, supported by IP, could spur further success bore fruit long before the twenty-first century.
I will give you one example. In 1821, exactly 200 years ago, a man named Thomas Jennings patented a cleaning process called “dry scouring.” Mr. Jennings’s process is a predecessor to what we know today as dry cleaning. After a year of working from home offices and dining room tables, some of us may have forgotten what dry cleaning is. But when you eventually make your way back into the office and need those services again, you have Mr. Jennings to thank.
The Patent Act had been around for thirty years by that point, but Mr. Jennings’s story is not a run-of-the-mill example of the early days of patenting. Rather, Mr. Jennings was the first Black person to receive a patent. It was 1821, so the majority of Black Americans were still enslaved at the time and could not own patents, but Mr. Jennings had been born a free person in New York City.
Mr. Jennings started out as a tailor’s apprentice and later opened a clothing shop. He was apparently so proud of his patent that he framed it and hung it over his bed. His dry-scouring invention led to significant financial success, which he used to contribute to the abolitionist movement, numerous charities, and America’s first Black-owned newspaper.
Mr. Jennings’s story exemplifies the life-changing power of a great idea that is supported by intellectual property—even when the cards are stacked against you, as they were for a Black man like Mr. Jennings in the 1820s.
Now, how many lives would have been changed if everyone had equal access and opportunity to participate in the intellectual property system? And much would the country’s innovation economy have benefitted from having ideas from a broader swath of the country’s talent?
When I took the helm as chair of the House’s Intellectual Property Subcommittee in 2019, one of our first orders of business was holding a hearing that examined the equity of our IP system and the importance of diversity in patenting.
Data shows that not all individuals have equal access to or participation in the patent system, particularly women and minorities. This means that we are leaving talent on the table. Our innovation economy can only reach its full potential when we ensure that everyone has the same equality of opportunity to participate.
That same hearing also raised a related concern—namely, whether there is sufficient awareness of the IP system. When Mr. Jennings came up with his cleaning process in 1821, how did he know to apply for a patent? This is second nature to all of you listening today but having the awareness to pursue intellectual property protection — or even knowing what intellectual property is — should not be taken for granted.
Not long ago, there was an informal study of a class of engineering students, and 21% could not answer “what is a patent?”; 32% could not answer “what is copyright?”; and 51% could not answer “what is a trademark?” There are a number of ad hoc programs that make great strides in filling this educational gap. In my home state of Georgia, we host a booming technology sector and no shortage of high-quality educational institutions. Georgia has many examples of programs that introduce college students, graduate students, and professionals to the intellectual property system, and we plan to explore the importance and impact of these efforts in a field hearing later this Congress.
Tackling these gaps in accessibility and awareness are key to the IP system’s long-term success, but we must also ensure that those who are participating in the IP system are finding that the system is working effectively. Some of the challenges in the current system have come to the forefront in recent years, and we in Congress want to be as responsive as we can.
Last Congress, for example, we enacted the Trademark Modernization Act, which addressed the significant concerns rights holders raised with the increase in fraudulent trademark applications and registrations at the U.S. Patent and Trademark Office. When the register is flooded with trademarks that should not be there, it is harder for new market entrants like individuals and small businesses to register their own legitimate trademarks. This may either put their business plans on pause while expend resources to cancel a fraudulent registration, or they may be forced to reevaluate whether and how to pursue trademark protection at all. The Trademark Modernization Act gave the USPTO important tools to address and combat these fraudulent practices, while protecting good-faith actors in the trademark system. My
Subcommittee will be monitoring how these proceedings are implemented under the one-year deadline set forth in the Act.
Of course, another significant aspect of the Act was effective immediately—namely, the part of the Act that restores the historical presumption that injunctive relief is available to prevailing plaintiffs in trademark cases. Ensuring that injunctive relief is awarded in such cases is critical to delivering on the trademark system’s goal of making sure that consumers can rely on trademarks to know the source of the products or services that they are purchasing.
The scourge of unsafe counterfeit products is another threat against consumers as well as our country’s hard-working, legitimate rights holders. Last Congress, the Subcommittee closely examined the rising tide of counterfeit products sold online through online marketplaces and the dangers that they brought to both brands and consumers. The amount of time the nation spends online continues to increase, and counterfeiters have followed suit. This Congress we will continue to explore the ways that marketplaces can keep illegitimate products offline.
On the patent front, there are a few areas that are ripe for evaluation. The Leahy-Smith America Invents Act celebrates its ten-year anniversary this year. As most of you know, the America Invents Act established the Patent Trial and Appeal Board at the USPTO, which has had a major impact on patent litigation.
This milestone is an appropriate time to comprehensively evaluate how well the law has worked and what challengers or tensions may have arisen. A number of questions come to mind: Has PTAB lived up to its promise to be a faster and less expensive “alternative” to district court litigation? Are PTAB proceedings structured fairly for the patentee and challenger? How do we ensure that PTAB and district court proceedings on the same patents are streamlined rather than duplicative? And importantly, are our small businesses and individual inventors being disadvantaged in this system?
In its ten years of existence, PTAB has operated under two administrations, each of which took different approaches through rulemaking and guidance. These approaches also garnered different receptions from the patent community at large. These administrative changes are not law, however, which means that any perceived strength or weakness in the system is susceptible to fluctuation with each turn of an administration.
There are also structural concerns that are top of mind. Any day now, in the Arthrex case, the Supreme Court will decide whether PTAB judges’ appointments are in violation of the Appointments Clause. Arthrex too brings up important questions: Are PTAB judges sufficiently independent? Are we ensuring that they can decide cases without undue political influence? Are there due process concerns with the way that agency adjudication works that might need legislation? Although we await the Supreme Court’s decision on PTAB’s fate, this may be a place where Congress will need to step in.
As you can see, there is no shortage of important IP topics on the horizon, as we work to ensure that the IP system is staying true to its aims in effectively incentivizing today’s creators and innovators.
The IP system has certainly come a long way since Mr. Jennings filed his cleaning patent. Many underrepresented inventors have followed in his footsteps, but there is more work to do in making this access equitable. The IP system also has become significantly more robust, but we must not waver in ensuring that its growth has not limited its effectiveness. And we must also be nimble in responding to the creative ways that others try to exploit the system, whether that be through fraudulent filings or illegitimate counterfeit products.
As practitioners, you are all integral in helping our creators and innovators assert and protect these important rights. As the professionals who sit on the “frontlines” of navigating the IP system, you are also an important voice in pointing out where challenges lie.
Thank you for inviting me here today, and I wish you all a productive and educational rest of the week.