Congress is poised to pass a patent reform measure that would make a number of dramatic changes. This post describes the results of a recent Patently-O survey on the impact of the reforms.
Survey Background: Over a seven day period beginning on August 18, 2011, 1226 responses were submitted to an online survey on patent reform. I filtered those results to include only responses coming from intellectual property professionals and excluded individuals with no experience in the field — leaving 1161 completed responses. Responses came from professionals working in all major areas of technology, including electrical engineering, mechanical engineering, biotechnology, software, chemical engineering, medical devices, pharmaceuticals, telecommunications, energy, semiconductor fabrication, etc. The majority of responses indicated 11+ years of experience working with intellectual property law issues.
Support for Patent Reform: The survey asked “Do you support passage of the patent reforms in H.R. 1249?” Although some responses showed support for the legislation, the weight of responses opposed the reforms, and the median response opposed the Bill.
Intellectual property professionals working in the areas of chemistry and pharmaceuticals tended to support the proposed reforms at a greater level than those working in electrical engineering, software, and medical devices. Self-described Democrats tended to support the proposed reforms more than either Republicans or Independents. Likewise, USPTO patent examiners tend to support the reforms more than the median.
Jobs: Many of the questions from the survey were intended to test sound-bites regarding the potential impact of patent reform. One of the most consistent arguments for patent reform is that the reform measures will lead to the creation of jobs for Americans. Senator Leahy, one of the Bill’s primary sponsor’s recently stated his belief that passage of H.R. 1249 would lead to 200,000 new jobs.
The survey asked “Do you agree that the proposed patent reforms … can be expected to create 200,000 new jobs?” The response to that question was clear disagreement.
Red Tape: In a recent speech, President Obama was quoted saying that the reform proposals “will cut the red tape that stops too many inventors and entrepreneurs from quickly turning new ideas into thriving businesses.” The survey asked whether the proposed patent reforms will indeed cut the red tape. The response to that question was clear disagreement.
Although the majority still disagreed, the responses showed more support for the ideas that the reform measures will simplify patent law and streamline the patents system.
At this point, a reader may be asking whether the patent reform proposals actually do anything. According to the patent law professionals surveyed, the proposed reforms do indeed represent a major overhaul — the first in 60 years.
In an open-ended question, the survey asked “If passed, what will be the impact of the reforms?” Responses that supported patent reform tended to indicate a seeming positive impact such as harmonization of the US patent system with the rest of the world and an improved opposition system. Negative responses are too numerous to mention.
The full survey responses can be downloaded here https://patentlyo.com/PatentReformSurvey2011.xlsx.
I'll explain more later on this topic, but the whole idea in 1952 was to codify, not to change. Frederico's ideas on what was done should be given great weight. Instead, Rich undertook to use the 1952 act to rewrite patent law the way he thought fit. Just for example, before 1952, prior art for obviousness purposes was limited to public use, knowledge, printed publications and patents, i.e., information in the public domain. After, this was expanded to include 102(f) and (g), and to include "on sale" at least against the patent owner for 103 purposes. Further, and Rich did not do this, but the Supreme Court did, extend 102(e) as well to 103. Frederico's ideas on 112, p. 6, are dramatically different than Rich's as I have discussed in detail before. Rich also like to pretended
that 103 was supposed to displace prior law. He did not succeed in this.
He should never have been placed on the CCPA given his desired to rewrite the law.
Max, we had the wisdom in 1790 to adopt the English patent statute with only small tweaks. As such, our courts looked to England for a very long time for companion cases on the interpretation of the statute, including the whole concept of patenting a process.
Had we simply adopted the EPC, we would have had the benefit not only of a well drafted statute, but also of 40 years of case law development to guide our paths.
What fools we are to think that we can do better than Europe. And, if the whole point is harmonization, why not simply adopt their law?
What we have done to ourselves makes very little sense.
Ned,
I am a little confused by your announcement of “I look at that example and the 1952 Act as something we should emulate here.”
Have you not posted elsewhere that the architect of the 1952 Act (Judge Rich) was the cause of the troubles we currently have? You seem to have some bi-polar views here – maybe I am missing a Kantian thrust…
“The patent bill is nothing less than another monumental federal giveaway for banks, huge multinationals, and China and an off shoring job killing nightmare for America. Even the leading patent expert in China has stated the bill will help them steal our inventions. Who are the supporters of this bill working for??”
This is even crazier than believing the reform will increase jobs or cut red tape.
I think IANAE it might not be politic of me to attempt an answer to that question. May I leave it to others?
Stalemate in Europe, on anything to do with changing the status quo in patent law.
[…]
The legislator […] is hopelessly out of his depth.
Why, then, is there no legislative stalemate in America? Could it be because the American legislator has no depth?
There is similar “history” in Europe. The European Patent Convention was done in 1973, written dispassionately by real specialist experts, in the days before lobbying, and before Wall Street took an interest in patents.
Fast forward to the 21st century, in which patent law is important enough to supra-national corporations to invest huge sums in influencing the legislator. Stalemate in Europe, on anything to do with changing the status quo in patent law. Every public statement, made by any party with an interest in patents, is aimed at influencing the legislator and so has to be taken together with a truckload of salt. The legislator, not being a patent academic, judge, litigator or prosecutor with at least 30 years of international experience of issues surrounding patent infringement and validity, is hopelessly out of his depth.
Leo, you do have a point that Congress should not automatically follow the lead of America's patent lawyers, but did you know that that is how 1952 Patent Act was written – by broad consensus of the patent community? Nothing was included or excluded except where there was a broad consensus in the patent community as a whole that a change was needed.
I look at that example and the 1952 Act as something we should emulate here. We should not act to change the patent laws of the United States unless there is a broad consensus that the change not only as necessary, but proper. We do not have that here. This legislation is being forced down our throats by the few for their own interests and against the consensus view that even though some change
might be desirable, that this change is not proper.
A vote by a bunch of patent lawyers should be decisive in Congress? Lord help us…
Ned, I have exactly the same feeling… the AIPLA is apparently being used as a lobbying tool by clients of its executive membership.
This is an interesting ethical issue as the general membership of the AIPLA was never polled as to their views.
What I think is interesting is that the sentiment against the bill is actually more homogeneous than reflected in the “too numerous to mention” description of negative responses. The most common basis for opposing the bill appears to be the conclusion that it will unduly favor big businesses and obliterate small companies, individual inventors, and research universities. Even responses that are different in form (“decrease innovation”) often appear to be simply different ways of referring to this same conclusion.
And, yes, I have personally written numerous legislators. Other than being put on a mailing list or two, I have not received any response or feedback.
Is anyone doing anything with these survey results? Although it is likely too little too late, it would seem appropriate to put them in front of legislators, etc.
6, see my post above in reply to Leo. I still have hope that the AIPLA can rescue itself from this debacle.
Well, Leo, I really don’t know. Until this survey, though, I had no real ammunition to show just how I felt about the AIPLA advancing a patent bill with which I strongly disagreed. They never asked me my views, and I have been a long time member and an active member of the patent law committee that entire time.
The membership did vote circa 1990 to go to first to file in principle. But that was then and this is now. Once we got to see the bill, I think it should have been put once again to a vote of the membership, or at least to the patent law committee which has about 500-600 members (I think.)
It is clear that the leadership pursued the matter of FITF with an assumption that the membership supported it. It appears that that assumption was not well placed, at least not after this survey.
The Board should at least meet in emergency session today and consider Dennis’ survey results. I think they should, at a minimum, call for a vote of the membership on the bill before further endorsing it. They should further inform congress of their request for a vote of the membership before proceeding.
The result of the vote should bind the AIPLA, and should be decisive as well in Congress.
Ned I think it obvious that your AIPLA has been ineffective in its mission to represent the IP community for quite awhile now.
Although, you must understand that perhaps they’re supporting this reform because they’d rather have this one done and get congress to move on to other matters for a few decades instead of getting congress to truthfully reform the entire thing from ground up.
Are we sure that Dennis’s survey sample is representative of the AIPLA membership, Ned, or of IP lawyers in general?
I agree.
Steve I’ve been saying for awhile now that we should rename the PTO to Miniluv.
I have been a member of the AIPLA for a very long time. I haven’t paid my dues this year and I am thinking seriously about not paying them.
I would like to see an investigation launched by the membership before I pay, otherwise, I will have to vote “no confidence” in the leadership in the only way I know how.
Perhaps we should organize a boycott of membership dues this year in protest.
“Will mean more jobs!”
“Quicker, easier patents!”
“Innovation unleashed!”
“1984” lives.
I agree. When the AIPLA sent me email gleefully announcing the passage of the bill in the Senate, I sent a reply email asking why they were spending my dues money supporting this pig.
I got no reply.
Why yes Malcolm, you are!
Investigation complete.
Answer: $
The survey reports that over 1000 people responded, a large majority of whom oppose the bill, a significant number strongly opposing. I think this should stand as an embarrasment for the AIPLA. That organization is suppose to represent the IP community. In this matter, clearly they are not because the AIPLA was a listed member of one of the organizations that actively promoted the patent bill.
I think this is such a serious embarrassment, that the membership should do something about it. They should demand an investigation as to why the organization stopped responding to its membership, or seeking their views, and instead became the advocate of views the membership not only did not hold, but opposed; and many, strongly so.
Independent, no, of course not. But the powers behind the bill really got the Republican leadership in House confused. They really thought, really thought, they were doing a good thing for America with this patent bill. They thought that because opposing opinion was largely frozen out from the debate.
But, at this late hour, all they have to do is look at this survey to see that they may have been sold a bill of goods. Perhaps they can do something now.
In the Senate, the Republicans need help to block the bill. I they will need some Democrat support. I hope they get it.
the leading patent expert in China has stated the bill will help them steal our inventions.
LOL. That’s funny.
This bill is a wholesale slaughter of US jobs.
LOLOLOLOLOLOLOLOL.
The lunatics are out in force today.
I think that this survey says a lot. Seeing as there is little self interest, on the part of patent professionals, in opposing this bill. If the bill passes there will be more processes to be followed and paperwork to be filled out; That means more work and more money for patent professionals. So, by saying that they disagree with this bill, they aren’t speaking about what would be best for them.
“patent reform”
Just because they call it “reform” doesn’t mean it is.
The patent bill is nothing less than another monumental federal giveaway for banks, huge multinationals, and China and an off shoring job killing nightmare for America. Even the leading patent expert in China has stated the bill will help them steal our inventions. Who are the supporters of this bill working for??
Patent reform is a fraud on America. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and killing their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. The bill will make it harder and more expensive for small firms to get and enforce their patents. Without patents we cant get funded. Yet small entities create the lion’s share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale slaughter of US jobs. Those wishing to help in the fight to defeat this bill should contact us as below.
Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors. Yet Congress has almost completely ignored the testimony of inventors. Congress tinkering with patent law while gagging inventors is like a surgeon operating before examining the patient.
Please see link to truereform.piausa.org for a different/opposing view on patent reform.
link to docs.piausa.org
While the data does bounce around, I am struck by what appears to be a relatively even split on the legislation, i.e., 50-50.
If it truly represents reform, I would expect a much stronger base of support. The data suggest otherwise.
I think it just comes down to that no one really believes Congress will effect any sort of great change anywhere. This is just one small item, compared to the larger inaction we expect from Congress.
“And who would have thought 6 words would have summarized the entirety of patent reform???”
Lolz back atcha – that (“Negative responses are too numerous to mention“) was 7 words.
I hope that this is not an indication that the Democrats should not pay attention to this poll and the underlying (and rather strong) view that Patent Reform simply “is not.”
” Negative responses are too numerous to mention.”
And who would have thought 6 words would have summarized the entirety of patent reform???
Google and Intel too.
Bob, you make it sound as if every second US citizen is going flat-out, inventing things round the clock. Just imagine then the rejoicing and flag-waving if the pols ever tried to introduce a First to Invent law in any of those countries where inventive activity, per head of population, is already higher than in the USA.
And to add- It is going to get political and I can not see any Republican who voted for it to NOT get hurt. In my district business people and inventors are already working to deal with Congressman Roskam. I understand they may create a newsletter to send to inventors in his district (using PTO data-sweet)and help fund opposition candidates. I have heard Roskam described as an IP terrorist so I guess there is some passion about the issue.
My Congressman, Peter Roskam (so called Republican)of Illinois 6th District is way out of touch. He not only voted for this bill in lockstep with Obama, his staff told me the big lobbyists were the factor. While this is not surprising it is a sellout of the small businesses and independant inventors of his district. Some think the Republicans will get traction from this but it was a house majority (Republcan) that made it possible.
Roskam is a disgrace and he will regret his backstabbing vote in a district full of inventors and small business people who rely on patents. The Chinnese must love fools like Roskam.
Well, I the Republicans in Congress ought to pay particular attention to this poll, as it appear they in particular are way out of sync with their constituency.
Dennis,
Thank you for posting this informative survey. Note the overwhelming majority who can see the disingenuous rhetoric of the bill’s proponents about its potential for creating 200,000 new U.S. jobs. For all the talk about the effects of impending patent reforms on the PTO and on jobs, readers may find the presentations and audio recordings of the Forum on The Overhaul of U.S. Patent Law extremely relevant. The Forum supported by NSBA and sponsored by IEEE was held on August 30 in Washington D.C. and it included the following presenters:
• Janet Gongola, “USPTO Implementation of the America Invents Act”
• Judge Paul Michel, “No Resources, No Reform”
• John Duffy, “The Pending Patent Bill: Toward a More Expensive, Lawyerly and Complex Patent System”
• Valerie Gaydos, “How Proposed Patent Reform Increases Risk for Start-Up Investors”
• Ron Katznelson, “Downhill Patent Harmonization with What?”
• Ron Hira, “Innovation Policy and Offshoring of R&D”
The presentations and available audio recordings are linked on the second page of the Forum event brochure at link to bitly.com. Enjoy
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