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The 109th Congress: Little For IP In The End

Hayden Gregory, Section Legislative Consultant ABA IP Committee

In a flurry of activity in the final week of the 109th Congress, the House of Representatives passed six intellectual property-related bills (three of which were combined in a single bill). The Senate acted on only one of the six, which it approved and sent to the President for signature. All of the other bills described below, as well as all other bills that were not approved by Congress before final adjournment on December 9, died with the adjournment.

The one successful bill was a relatively minor measure, H.R. 6338, to provide legal protection to distinctive emblems for the Red Cross-related organizations Red Crescent and Red Crystal. That fast-moving bill was introduced in the House on December 5, passed the House that same day, and was approved by the Senate on December 8.

On December 6, the House of Representatives passed S. 1785, the “Vessel Hull Design Protection Amendments of 2006”. The bill had been approved by the Senate a year earlier, on November 18, 2005.

As passed by the Senate, S. 1785 would amend the Vessel Hull Design Protection Act (17 U.S.C. 1301 et seq.) to extend the legal protection of the Act to designs of vessel decks in addition to protection of hull designs under current law.

In addition to the provisions of the bill as passed earlier by the Senate, the House amended S. 1785 to include two other House bills. As a result of these amendments, the bill was sent back to the Senate for further consideration.

The House added to S. 1785 the text of House Concurrent Resolution 319, which commemorates the Bayh-Dole Act on its 25th anniversary. The Bayh-Dole Act enables non-profit organizations and small entities to obtain patents and receive royalties for inventions that result from research and development subsidized by Federal financing.

The second House addition was the text of H.R. 5120, a bill that amends the Patent Term Restoration Act (35 U.S.C. 156) to allow the Director of the USPTO to accept a patent term extension request not later than 5 days after the expiration of the current statutory deadline, provided that the late filing is shown to be unintentional. Current law provides that such a request must be filed within 60 days from the date that the Food and Drug Administration approves the drug for use. Legislative history indicates that H.R. 5120 was designed to provide for a patent term extension for the anticoagulant drug Angiomax, concerning which the request for extension was filed one day late.

Another Bayh-Dole Act related bill, H.R. 6427, passed the House on December 8. H.R. 6427 would amend the Act to permit smaller universities and other non-profit organizations to retain a higher percentage of licensing fees and other royalties for inventions developed under the Act.

On December 5, the House approved H.R. 4742, a bill to allow the USPTO Director to waive statutory deadlines for filing and processing of patent and trademark applications in the event of a major disaster such as Hurricane Katrina.

Presidential nominations which have not received Senate approval suffered the same fate as unenacted bills. Included in this group is the nomination of former USPTO Director James Rogan to be a U.S. District Court Judge for the Central District of California. The nomination has been returned to the President, and must be resubmitted after the 110th Congress convenes on January 4, 2007 if it is to be considered further.

Although Congress adjourned after failing to pass most of the appropriations acts, including the bill (H.R. 5672) that funds the USPTO, all agencies continue to receive funding through a temporary funding measure known as a continuing resolution. This temporary funding measure expires on February 15. The 110th Congress will therefore have to complete action on funding the government for Fiscal Year 2007, which began on October 1, 2006. The House has passed H.R. 5672 with full funding for the PTO (no diversion of user fees) and the Senate Appropriations Committee has approved the same figure. It therefore appears likely that when final action is taken, the PTO will again receive full funding with no diversion. Similarly, all these funding measures provide for a one-year extension of the PTO user fee increases that were scheduled to expire on September 30, 2006, and their continuation for at least this period of time seems certain.





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