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Joint Strategic Plan on Intellectual Property Enforcement a number of other countries seek and reach agreement with China on similar commitments of their own, including Germany and the United Kingdom. Adherence to the U.S.-China bilateral cyber commitments is an important part of the overall U.S.-China relationship, and it is reviewed through the year, including during the semiannual meetings of the U.S.-China High Level Joint Dialogue on Cybercrime and Related Issues. Further, as noted in other U.S. Government reports, 28 recent examples include, in 2015, China’s leadership continued to affirm the importance of developing and protecting intellectual property and emphasized that stronger protection and enforcement of IPR are essential to achieving China’s economic objectives. China expressly committed not to “conduct or knowingly support misappropriation of intellectual property, including trade secrets and other confidential business information with the intent of providing competitive advantages to . . . [its] companies or commercial sectors.” China also committed not to “require the transfer of intellectual property rights or technology as a condition of doing business . . . .” As part of its legal reform effort, China continued to develop draft measures on a wide range of subjects, including on copyright, patents, trade secrets, drug review and approvals, anti-monopoly law enforcement as it relates to intellectual property, and regulations on inventor remuneration. To date, the proposed reforms include many welcome changes but also aspects that are of great concern. China continues to review its Copyright Law, and revisions aligned with international norms and best practices would put China on a stronger footing to encourage growth in, and investment by, industries relying on copyright protection. Another positive development is that the Office of the National Leading Group on the Fight Against IPR Infringement and Counterfeiting, established by the State Council and chaired by China’s relevant Vice Premier, continues to play an important and positive role in intellectual property, and it extended its online enforcement campaign into 2015. Also welcome is China’s three-year pilot program to study the merits of specialized intellectual property courts, currently including courts in Beijing, Shanghai, and Guangzhou. However, given the high levels of counterfeiting and piracy in China, more needs to be done. Relevant U.S. agencies will continue to engage China constructively by way of informal and formal meetings and dialogues, including the U.S.-China Strategic and Economic Dialogue (S&ED), the U.S.-China Joint Commission on Commerce and Trade (JCCT), and other engagements between our IP, enforcement and innovation agencies to ensure effective enforcement, non-discriminatory treatment and a fairer market for U.S. rights in China. SECTION 4 D. SUPPORTING INNOVATION AND TECHNOLOGICAL ADVANCEMENTS: THE NEED FOR TOOLS FOR EFFECTIVE AND PREDICTABLE PATENT PROTECTION DOMESTICALLY AND ABROAD. Patent-intensive industries are a driving force in the U.S. economy. According to a recent Department of Commerce report, the value added by patent-intensive industries in 2014 was $881 billion, which was 5.1 percent of U.S. gross domestic product. 29 Supporting efficient and predictable patent protection policies that promote investments in research and development is key to the continued growth of innovative economies. Without effective mechanisms to protect intellectual property rights, including patents and trade secrets, competitors could simply sit back and copy, rather than invest the time and resources required to invent and innovate. Research and development would be even riskier investments, with little to no assurance that such investments would or could be commercially put into use. Simply put, facilitating efficient and predictable patent protection policies harnesses the drive and ingenuity of our innovators and helps ensure that our economy remains innovative and competitive. 1. Enhancing Domestic Patent Protection. Balanced policies that support strong patent rights and reward innovation and entrepreneurship, while minimizing the occurrence of abusive patent litigation, are key to an effective patent system. 134
Office of the Intellectual Property Enforcement Coordinator As USPTO leadership has underscored, 30 patent quality is central to fulfilling the purpose of the U.S. patent system, which as stated in the U.S. Constitution is to “promote the Progress of Science and useful Arts.” 31 High quality patents promote efficient licensing, investment in research and development, and future innovation. Patent owners and the public benefit from having clear notice of the boundaries of the issued patents. USPTO’s Enhanced Patent Quality Initiative plays a fundamental role in institutionalizing best practices associated with patent quality at all stages of the patent examination process. 32 The initiative, among other advantages, raises Patent Examiners’ awareness of available search tools, improves resources to identify relevant prior art, identifies best practices to enhance the clarity of prosecution records, and captures data about the correctness and clarity of Patent Examiners’ work products that will facilitate future decisionmaking. Quality examination practices at the outset is key to building confidence in the patent system and promoting innovation. Supporting the development of high quality patents also has the additional benefit of helping to reduce issues that can lead to costly and often needless litigation. There has been significant attention focused during recent years on reportedly abusive patent litigation tactics by way of certain companies, commonly referred to as Patent Assertion Entities (PAEs) or Non Practicing Entities (NPEs). It has been reported that abusive litigation tactics can be used to threaten companies to extract unwarranted licensing fees or settlements based on patent claims that may be deemed inapplicable or invalid if subject to legal scrutiny. 33 Shortly prior to the issuance of this Strategic Plan, the Federal Trade Commission issued a report— “Patent Assertion Entity Activity: An FTC Study”— examining non-public information and data covering the period 2009-2014 from entities using the agency’s authority under Section 6(b) of the FTC Act. 34 The FTC report spotlights the business practices of PAEs, and provides an enhancement of our understanding of PAEs with additional empirical foundation for ongoing policy discussions. The U.S. patent system has undergone a number of significant changes in recent years which have focused on reducing abusive litigation tactics in the patent space. These changes include U.S. Supreme Court rulings affecting patent-eligible subject matter; the implementation of new post-grant review procedures at the USPTO established by the America Invents Act (AIA); changes to the Federal Rules of Civil Procedure which raised the pleading standards for patent cases; adoption of local model rules to better manage patent litigation; and U.S. Supreme Court rulings regarding the award of attorneys’ fees. 35 The AIA represents the most significant legislative change to the U.S. patent system since 1952, and established a unique forum to potentially curb abusive patent litigation. 36 The Patent Trial and Appeal Board (PTAB), created under the AIA, reviews the patentability of claims challenged by accused infringers in AIA trial proceedings. By challenging the patentability of patent claims being asserted by PAEs at the PTAB, stakeholders can take affirmative steps to curb abusive patent litigation practices. The USPTO continues to engage with stakeholders on how to further develop the PTAB rules and procedures to make it a more effective and fair alternative to the costly and arduous litigation procedures of traditional courts, and the PTAB is already producing tangible results. In addition, an amendment to the Federal Rules of Civil Procedure (which went into effect in December 2015) has raised the pleading standards for patent cases. As a result, plaintiffs will need to do more than simply provide defendants notice of infringement claims. Parties alleging patent infringement now need to adhere to the requirements set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which require a complaint to allege “sufficient factual matter, accepted as true, to state a claim that is plausible on its face” and “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (Iqbal, id. at 678). New technologies continue to challenge the patent system. Continued prospective analysis and stakeholder collaboration on how emerging technologies may impact the patent landscape is an important USPTO priority. The USPTO implements a multi-prong approach for addressing issues related to emerging technologies including: (1) enhancing patent quality by delivering expert technical training on emerging technologies to patent examiners through its Patent Examiner Technical SECTION 4 135
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U.S. JOINT STRATEGIC PLAN ON INTELL
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B. In Furtherance of a Healthy Doma
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PREAMBLE A Reflection on Creativity
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Senior Advisory Committee Establish
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INTRODUCTION IP-intensive industrie
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EXECUTIVE SUMMARY Services, the Dep
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EXECUTIVE SUMMARY • Advertising B
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1 THE GLOBAL SCALE OF INTELLECTUAL
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INTRODUCTION The story of intellect
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SECTION 2 CONTENTS HELPING TO PROMO
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