IP Questions in Lutnick hearing focus on risks from China and Backlog
“They don’t protect us in China, and they come into our office and use it against us. Howard Lutnick
This week, the U.S. Senate held an appointment hearing to vet Donald Trump’s nominee for Secretary of Commerce Howard Lutnick. While much of the hearing focused on issues outside of the U.S. Patent and Trademark Office (USPTO), Lutnick touched on several key points relevant to the intellectual property system.
First, Senator Marsha Blackburn (R-TN) asked Lutnick about China’s leadership in 57 critical and emerging technologies and the role the USPTO’s growing backlog has played in that. Blackburn stated that China was the leader in 3 [China was] technologies in the early 2000s to 2010 and now they are leading in 57. “Many innovators in Tennessee spoke to me about their frustration with trying to obtain a patent…the time it takes.” I don’t think you’ve seen the USPTO backlog, which is 820,000 applications. The current backlog is 826,736 unexamined patent applications/ 26.1 month total pendency. The Office’s April 2024 Notice of Proposed Rulemaking (NPRM) on Setting and Adjusting Patent Fees predicted the backlog to increase to only 820,200 by FY 2026 before decreasing to 780,000 by FY 2029, and in July, former USPTO Director Kathi Vidal said the Office was tackling the backlog in part via a concerted hiring effort.[emerging technologies]More recently, former USPTO Deputy Director Derrick Brent, prior to his resignation and Coke Stewart’s appointment to take his place as Acting agency head, penned a Director’s Blog post explaining that the Office is “now at an inflection point that requires us to build examination capacity to achieve our long-term pendency goals.”
Lutnick told Blackburn that “the backlog is unacceptable and my pursuit will be the rigorous reduction of that to get it down,” but did not say how precisely he would achieve that. Lutnick added: “I am a patent owner, I have used the patent office for many years. It could be more productive, but the Chinese abuse us.” This is going to stop, we are going to study that and work on ending it and making sure our American inventors get taken care of quickly. This is going to end, we are going to study that, and we are going to work on ending that and making sure our American inventors get taken care of quickly and effectively.”
Lutnick holds more than 400 U.S. patents and 800 worldwide, and has been involved on both sides of extensive patent litigation over the years.
The Commerce Secretary nominee also fielded a question from Senators Ted Budd (R-NC) and Todd Young (R-IN) about threats posed by China and vowed to crack down hard on IP enforcement abroad. He addressed the recent news regarding the Chinese AI model DeepSeek which performs at the same level as the top U.S. AI Models but at a lower cost. Lutnick asked during the hearing, “How?” “By leveraging what they’ve taken from us, stolen from us, or leveraged from us–it’s outrageous and it needs to be addressed.”
A full committee Executive Session will be held on Wednesday, Feb. 5 at 10 a.m. to vote on Lutnick’s confirmation.
RFK Addresses March-In
Also this week, according to the Bayh-Dole Coalition, Secretary of Health nominee Robert F. Kennedy, Jr. said in his written response to a question from Senator Elizabeth Warren (D-MA) during his nomination hearings that using march-in rights under the Bayh-Dole Act to lower drug prices is not appropriate. Below is the written question and answer in full:
Question 108
: The Bayh-Dole Act, codified in 35 U.S.C. SS 203 gives the federal government the power to grant licenses for patented inventions that were developed with federal funds to “responsible applicants
“, if they are not “available to public at reasonable terms”, which includes price. Do you support using march-in rights in order to lower drug prices for Americans? Do you think that the price of a drug should be considered when determining whether or not the government should exercise its march-in rights. If confirmed as Secretary of HHS, would you commit to strengthen and finalize the Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights?
Response: This would not be an appropriate use of march-in rights under Bayh-Dole.”[s]
Eileen McDermott
Eileen McDermott, Editor-in Chief of IPWatchdog.com is a veteran IP and legal journalist. Eileen McDermott is a veteran IP journalist and has held editorial and management positions at
