It is Memorial Day in the U.S. Enjoy a day of rest and remembrance.

Yesterday I posted a note discussing special interest groups in the patent reform debate.  I noted three major coalitions forming:

1) Large high-tech / software companies, including Microsoft and Intel, with the goal of reducing the strength of patents. These companies have major patent portfolios, but fear small companies and individuals that may develop blocking patents.  This group is also garnering support from denouncers of software patents.

2) Other large patent holders, including Big Pharma, with the goal of strengthening and streamlining patents by changing to a first-to-file system and encouraging a post-grant opposition.

3) Start-ups and individual inventors, with the goal of keeping the status quo.

I received a few of great responses from patent bloggers:

• [Link] Russ Krajec correctly notes the irony in Microsoft taking the same position as the FFII. “FFII and their ilk have tirelessly protested, rallying their troops by proclaiming that the big software companies will exert their patents to harm the small companies. When the truth is uncovered, the big companies are actually intimidated by the small companies, not the other way around.”
• [Link] Stephen Nipper takes issue with my interest group #3 — Steve notes that “small entities in general support reformations to the patent system in fact, small entities support a number of the current proposals.  HOWEVER, they will not support those ‘reforms’ proposed by large entities for no purpose other than to avoid liability/damages.”
• [Link] Always able to bring parties together, Matt Buchanan notes that Steve is right and that I am right.  “Based on the record, it is clear that small entities, which includes individual inventors, adamantly oppose changing the injunctive relief provision of the patent law. . . . [However,] small entities have expressed support for many of the reform proposals that are on the table.”

This week, Franklin Pierce gave an honorary degree to C. Yardley Chittick — the oldest practicing patent attorney in the U.S. Chittick is 104 years old. According to NPR,

Chittick, who is 104, lived across the hall from Humphrey Bogart in 1917 at Phillips Academy in Andover, Mass. He turned down a job with Thomas Edison after graduating from MIT with a degree in mechanical engineering. He later earned his law degree from George Washington University.

Although not nearly as advanced, over the past year, I have gotten to know Jim Hawes (Reg. No. 19,680).  Jim is a long-time author of a number of books published by West.  Most recently, he asked me to help him update Patent Application Practice. PAP is already in its second edition and still going strong with updates every six-months.  I would love to hear comments from anyone who has used the book.

Each month I post a note discussing new research from the academic side of patent law.  The May 2005 edition includes three great articles from a range of topics:

1. Donald S. Chisum, Reforming Patent Law Reform, 4 J. Marshall Rev. Intell. Prop. L. 336 (2005).  In a short and accessible article, Professor Chisum discusses the nuts and bolts behind patent law reform and asks “reformers” to take a high road.  Specifically, the article proposes six “principles” that any proposed patent legislation should follow: (i) simplicity; (ii) zero-based budgeting; (iii) cost sensitivity; (iv) completeness and generality; (v) international compatibility; and (vi) clarity on effective dates.  As demonstrated by Chisum, the proposed legislation fails each of these principles.  Download the article. (Also, check out footnote 31). (Thanks to Karl Maersch for the tip).

2. Douglas G. Lichtman, Substitutes for the Doctrine of Equivalents: A Response to Meurer and Nard, U Chicago Law & Economics, Olin Working Paper No. 244 (May 2005). In a preemptive strike, Professor Lichtman has taken issue with the forthcoming patent claim scope article by Professors Michael Meurer and Craig Nard. Lichtman argues that the doctrine of equivalents (DOE) is still useful in today’s patent world.  Making three major points, Lichtman argues that the DOE (i) ensures patent viability despite language and foresight limitations; (ii) discourages wasteful efforts to “perfect” claim language; and (iii) allows the patent system to make decisions based on todays knowledge rather than living in the false construct that time stopped at the date of the invention.  Remembering the article’s title, Lichtman argues that the DOE has no equivalent substitutes. Meurer Nard Article, Lichtman Article. (The Meurer Nard article will be published in the Georgetown L.J. later this year).

3. Mark H. Webbink, A New Paradigm for Intellectual Property Rights in Software, 2005 Duke L. & Tech. Rev. 0012 (2005). Webbink is deputy GC at Red Hat.  In this critique, Webbink presents a dissenting voice against a recent article by Microsoft’s GC Bradford Smith (71 U. Chi. L. Rev. 241 (2004)).  In that article, Smith, and his co-author Susan Mann (also of Microsoft) argued that growth in the software industry is a direct result of implementation of strong intellectual property regimes for software.  Webbink makes the case that many other developments were much more important to the explosion in the software industry in the 1980’s and 1990’s.  He lists the development of the personal computer as one such cause for the explosion in off-the-shelf software.  Webbink also gives Microsoft as a test-study — showing that Microsoft did not escalate its patent filings until 1994, “long after the company had become well established.” Read the Article.