Senator Orrin Hatch is Retiring. Who Will Carry the IP Rights Torch?

Attribution @DouglasSimkin
Attribution @DouglasSimkin


Utah Republican Senator Orrin G. Hatch has announced that he will not seek re-election in November 2018. Hatch, the longest-serving Republican senator in U.S. history, has been a steadfast defender of intellectual property rights.

He was of particular importance in the authoring of the America Invents Act of 2011 (“AIA”) and the Hatch-Waxman Act of 1984 (“Hatch-Waxman”). The AIA provided for administrative proceedings at the U.S. Patent and Trademark Office (“USPTO”), changed the U.S. patent system from “first to invent” to “first to file,” and allowed parties to challenge the validity of granted patents.

In the 1980s, he worked with former Representative Henry Waxman (D-Calif.) to pass the Drug Price Competition and Patent Term Restoration Act, also known as the Hatch–Waxman Act, which lowered the price of prescription drugs by making it easier to bring generic drugs to market. He also backed the Digital Millennium Copyright Act of 1998, which cracked down on illegal downloading of music and movies and helped put Napster out of business. He held up the Trans-Pacific Partnership in the last Congress because he was concerned that it did not provide enough intellectual protection protections for biologics.

Hatch also had a side career in music. He worked with various musicians to compose more than 300 songs, including the soundtrack to Hollywood movie, “Ocean’s Twelve.” The New York Times reported he earned nearly $40,000 in royalties in 2005.

With his retirement come questions. Who will replace him? Will they champion the rights of IP holders as strongly as he did?  Senator Hatch has voiced some concerns of his own, primarily about conflicts between some of the legislation he has worked on.  He has called on Congress to review how patent validity challenges at the USPTO are affecting the older mechanism for resolving drug-related patent disputes under Hatch-Waxman.  At the American Intellectual Property Law Association’s (“AIPLA”) annual meeting in October 2017, he told practitioners that patent challenge proceedings running parallel to Hatch-Waxman patent disputes in court can result in conflicting decisions.

With two sponsored IP bills pending in Congress – the Orphan Products Extension Now Accelerating Cures and Treatments Act of 2017 and the Promoting Automotive Repair, Trade, and Sales (Parts) Act of 2017 – and numerous other issues to be decided, it is unclear whether Senator Hatch’s replacement will carry on his IP goals. While news outlets are predicting Mitt Romney to step in, only time will tell who will take the torch.

A lot can happen in a year.

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