Patent Reform 2011: Vote Scheduled At the Conclusion of Labor Day

As you enjoy the holiday weekend, keep in mind that next week we will likely see final passage of the Patent Reform Act of 2011 (a.k.a. the Leahy-Smith America Invents Act). The President would then sign the Bill into law a few days later.

Particulars:

  • The House and Senate have each already overwhelmingly passed parallel patent reform legislation. H.R. 1249 and S. 23.  The two bills have some minor differences — the primary difference probably being that the Senate version does a better job of solidifying PTO funding.
  • Rather than negotiate a compromise bill in conference, Senate leadership has decided instead to scrap S. 23 and bring the House bill to the floor for a vote (and potential amendment).
  • On Tuesday, September 6, 2011 in the evening at 5:30 pm (Eastern) the Senate is scheduled to vote to invoke Cloture on H.R. 1249.
  • Once Cloture has been invoked, there can be no more than 30 hours of debate on the bill and only amendments that have been filed before the cloture vote may be considered once cloture is invoked. Finally, according to Senate rules, once cloture is invoked the Senate may not consider any other matters until the matter is disposed-of.
  • If amendments are approved prior to passage, the bill would return for to the House for approval. As of September 2, 2011, no amendments to H.R. 1249 have been filed in the Senate.  (According to the Library of Congress Bill Summary).
  • Despite a lack of clear funding requirements, the USPTO fully supports H.R. 1249 and believes that the bill will allow the agency to collect and spend at a much higher rate than today.  USPTO Director Kappos has argued that  the additional funding “will give [the PTO] the ability to examine work given to us by U.S. innovators much more effectively, so they can produce products and services and economic opportunity much more quickly. . . . “What we’ll see is a job-creation engine turned loose.”
  • Sen. Leahy and Reid argue that the reforms will lead to 200,000 American jobs. [Upcoming Link: Patent Attorneys Call BS]

75 thoughts on “Patent Reform 2011: Vote Scheduled At the Conclusion of Labor Day

  1. Well he’s either very ignorant or he’s joking. I’m not sure which. Of course, the church hijacked existing winter solstice celebrations, so he’s wrong on that count as well, and that’s pagan, not atheist.

    As an atheist myself I am happy to celebrate the holiday whether you base it on Christ, the winter solstice or the flying spaghetti monster. I won’t be upset even if you call it Noel, as I parlez Francais fairly well. To upset me you would have to take away my plum pudding and my crackers (one that go bang, not ones you eat).

    And of course Americans would be so much better off without a minimum wage. Not! Other Western countries don’t have a minimum wage and still manage to pay much higher wages than China. Saying that jobs are exported to china because of the minimum wage is a canard (he won’t like that, because canard is a French word).

  2. Congress has certainly pulled a classic bait-and-switch with this patent reform bill: it was the prospect of ending fee diversion that helped drum up so much support for the otherwise-unpopular legislation. However, once the bill had received significant support due to the anti-fee-diversion provisions, members of Congress then stripped those provisions from the bill, leaving us instead with unpopular legislation that offers the worst of all worlds.

  3. With regard to the “prolific inventor” reference, I am a prolific independent inventor (53 issued patents, many other pending). No, I won’t stop inventing regardless of what happens with patent law. Inventors can’t stop inventing, it is in our nature. However, if patent reform passes in its current form, it is pretty likely I’ll lose the “independent” portion of my job description and look to join one of the big corporations that the “reform” bill favors. I’ve described the impact of this bill on independent inventors in much greater detail in a letter to my senators posted on my blog, link to feettothefire.com

  4. Congress has certainly pulled a classic bait-and-switch with this patent reform bill: it was the prospect of ending fee diversion that helped drum up so much support for the otherwise-unpopular legislation. However, once the bill had received significant support due to the anti-fee-diversion provisions, members of Congress then stripped those provisions from the bill, leaving us instead with unpopular legislation that offers the worst of all worlds.

  5. “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

  6. With all due respect to those with hands -on practical experience, the “answer” to ridiculous suits is not the post hac rescinding of rights under valid law.

    Such leads to a “the ends justify the means” mindset – most dangerous in the legal arena.

    The answer is enforcing the law appropriately, and where necessary, enforcing the penalty against the bringing of frivolous lawsuits (and keep in mind what you all are really complaining about is the ability to bring a frivolous lawsuit). The law itself, with its component of intent to deceive is proper and just.

    Still waiting to hear from those so eager to scrap the penalty whether the benefit should be rescinded as well…

  7. Let me tell you a Story about hind sight.
    I was in the Store where I have my treasures.
    And when I first started there I signed my last name on some of the Tickets. When I went in there yesterday as I always do, I was told somebody had torn a lot of the tickets off of Items. And those Items had my last name on them….. go figure, I know I did.

  8. As They swirl in the glass,
    and bang side to side,
    and float to the top I see,
    the Ice in the glass,
    the drink that it holds,
    It’s nothing less than Iced Tea.

    Boil and bubble,clearly now trouble,
    of the likes you’ll never again see.
    Now that It’s hot and steaming my cup,
    as I now sip a cup of hot Tea.

    You have clouds in your Coffee.
    I have ice in my Tea.
    Coffee thick with no vision.
    Tea seen clearly for me.

  9. Once Cloture has been invoked, there can be no more than 30 hours of debate on the bill and only amendments that have been filed before the cloture vote may be considered once cloture is invoked. Finally, according to Senate rules, once cloture is invoked the Senate may not consider any other matters until the matter is disposed-of.

  10. Remember what you did, and why you did it. Remember what I do now, and why I did it.
    Merci none, but it French that means Thank you. But obviously that is me just being facetious.

  11. Ice Cream/Choc. Sauce
    Pie/Ice Cream
    Cake/Frosting
    Ice Cream/Milk
    ***Will/Insurance***
    Who better than an Ex Insurance man to demand that Marcella be listed in the Boston Globe as deceased. And then to state she died in Massachusetts in Ancestry.com, when she died in Tennessee. Obviously to keep it flowing.
    Metropolitan maybe… we shall see! I wonder if that is considered Conspiracy? It must be.

  12. No, it’s going be 200,000 new jobs. I’m sure of it.

    Seriously, I think everyone here knows that one is a howler. Man, it’s impressive how politicians can say things like that with a straight face.

  13. Thanks, Daniel. Yes, perhaps I should have mentioned that by way of full disclosure, but I figured most here were already aware of my constitutional challenge to 35 USC 292(b). It looks like the cause will be won within a week or two, whether by Act of Congress or decision of the Federal Circuit in FLFMC v. Wham-O.

    As I’ve said before, I think this deluge of false marking cases showed both lawyers and the legal system at their very worst. It confirmed for a lot of people that this is mostly just designed to line the pockets of lawyers.

  14. I see this as It may give inventor(s)”greater Certainty” of acquiring a Patent? *That sounds like taking from Peter to Pay Paul.More Government Spending. Nothing Changed Just Higher $
    For The Little Guy and playing into the hands of the Corporations.Again Again Again Again and more Again…Peter J. Frank (independent inventor)

  15. Andrew, IIRC you’ve actually been defending one of these false marking suits, so I’m surprised people here aren’t giving you more credit: you’re in favor of legislation that’s going to reduce a potential income stream. I guess some folks aren’t used to dealing with an honest lawyer.

  16. The death of false marking is the only good thing about this legislation. But contrary to what Barry in the White House, Pat in BenAndJerryLand, and Lamarr in Lubbock promised, nothing in this legislation is going to spur jobs (except for PLI and PRG, who will now be able to offer courses teaching us the new twists in the law.)

  17. For all the talk about the effects of the Patent Act 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.

  18. And like the second Application, the first Application drawings went to Canada. And the second Application drawings still seem to be stuck. And you switched my first set for the second Application just like the first Application drawings. The pattern is amazing the same Crimes over and over again.

  19. “Can someone tell me who’s bright idea it was to celebrate “Labor Day” during 9-11 Month?”

    Well, its kind of like the classic chicken and egg question. Except that in this case, we have a pretty good idea which one came first.

  20. So, make a document declaring to the government that you totally inventloled the subject matter therein (although you haven’t actually made/used it lol, hush), pay a bit o loot to the gov, file suit and walk away with some free money.

    What a racket.

  21. “Sen. Leahy and Reid argue that the reforms will lead to 200,000 American jobs. [Upcoming Link: Patent Attorneys Call BS]”

    Man they’s some good lias.

  22. “Rather than negotiate a compromise bill in conference, Senate leadership has decided instead to scrap S. 23 and bring the House bill to the floor for a vote (and potential amendment). ”

    Well f.

  23. The Patent Reform Act is the worst thing to happen to America since the minimum wage act. We might as well just rename the country United States of China now because that is where all the jobs are going. My friend who owns a software business was prepared to hire a new cleaning woman for the office but instead he’s just going to have his thirteen year old daughter do it. She cried about it and understandably so because she had just made the cheerleading squad and now she will have to quit. On the bright side, she’s cheaper and she won’t be complaining about the lack of “benefits” or other entitlements that the socialist (excuse me, “working class”) types are always trying to extort from the job creators.

    If I sound keyed up, it’s because I just finished watching the news. Can someone tell me who’s bright idea it was to celebrate “Labor Day” during 9-11 Month? It’s almost as bad as the atheists trying to mock Christmas with their “Winter Solstice” pseudo-holiday. Sorry, but we don’t need any French holidays here.

  24. Dennis, The cloture vote on Tuesday is on the motion for the Senate to proceed to H.R. 1249. That vote will be taken without debate. Under the Senate’s complicated cloture procedure, in Senate Rule XXII, Senators who want to delay may then speak on the motion to proceed for one hour each, for a total of 30 hours of speeches, before the Senate moves to the merits of H.R. 1249. Senators then will be able to offer amendments unless the leadership files another cloture motion to prohibit or limit amendments. So, the Senate may not have a final vote on passage of H.R. 1249 for a few days after Tuesday. It could go into the following week.

  25. Ummm…no. Considering the socially useless role false marking plaintiffs played in nearly every case, I’ll cry no tears for how Uncle Sam pulled the plug on them. And if they want compensation for their efforts from our Uncle in the Court of Federal Claims, I say good luck. But I don’t really mean that.

  26. Take the benefit away and then we will see who sings a different tune on ‘it’s only a mark.’

    I think the notice function is clearly a benefit – or are you set to deny that? Are you starting to hum your tune?

  27. I know… this is the same reason I cancelled my membership with the ABA IP section. Really not about improving IP in general, but more how to lobby effectively for big entity clients.

  28. Before we argue about whether marking should even be thought of as a benefit, perhaps you could describe to me the harm of leaving an expired patent number on a product. Not theoretical harm, but plausible, real world harm to anyone.

  29. And to tell you the Facts… The one that lost his job because of the Evil keeping me tied up.. That one was not even one of the Three. so that would make 4.. All in a Days work!

  30. The first thing I suggest is that I am allowed to file Three Applications before the S#it hits the fan. We’ll see who is loony and who is keeping me from showing just how loony I am not. When the world finds out what they told me, they will feel sorry for the story tellers.
    And you know the old saying.. there are two sides to every story. Wait till they hear my side!

  31. Think about who can afford to belong to the AIPLA. Big business and lawyers representing big business.

    Follow the money.

  32. And hey, what about just policing your freaking patent marks so you don’t get sued?

    Yes, working with lawyers, have employees monitor patent expiration dates closely. On expiration day, change product molds, packaging and advertising materials. Don’t be off by a day, else one of these false marking plaintiffs will sue. And all of this is to prevent the tremendous social harm done by the presence of expired patent numbers on products.

    Thankfully, this madness ends in a few days.

  33. Andrew:

    I hear what you are saying, but whether the defendants in these cases acted with intent to deceive is immaterial. False marking stifles competition whether it was done with intent to deceive or not. What is to stop anyone from putting b.s. patents on their products now, or expired ones for that matter? This is just typical tort reform: scrap the whole system because some people are making money off of settlements while preventing big corporations from doing whatever the hell they want.

    I understand that the statute requires intent, but it’s a nebulous standard that is almost impossible to prove at the outset of the case, unless you are a whistleblower with inside information. That is the reason the Federal Circuit allowed for the rebuttable presumption of intent to deceive (which they are crawfishing on now).

    And, excuse me while I cry big crocodile tears for the Defendants that had to pay. These settlements, which averaged about $35,000 a piece were a slap on the wrist for most companies. You would think the Defendants were being held ransome for their first born child the way the cry about it. Half of the money goes to Uncle Sam anyway.

    Additionally, as is usually the case in America, the false marking system isn’t perfect, but it works. You don’t see false markings very often anymore. The threat of litigation has forced these guys to comply with the statute and police their patents. Besides, every Plaintiff – no matter what type of litigation they are involved in – uses cost of defense as leverage to get what they are entitled to; otherwise Plaintiffs would never receive any money EVER, even when they do have a valid claim. And, Defendants would never have any pressure to do what’s right. The system works because it’s expensive. That’s the only reason. It has nothing to do with right or wrong.

    And hey, what about just policing your freaking patent marks so you don’t get sued?

  34. This is a freight train without a conductor. The USPTO can’t keep up with the changes in jurisprudence much less major changes in patent law.

    This legislation may produce jobs, however, they will almost all be overseas as multi-national corporations will patent here and build overseas and resell here to duped consumers.

    Laslty, why the AIPLA endorsed this turkey is beyond me.

  35. I know a prolific inventor who has said he will stop pursuing patents if it becomes law.

    You people are really, really frxcking funny sometimes.

  36. It’s bad enough this type of political corruption and special interest thievery exists in our country under the cover of darkness…but it’s a really sad day for America when it’s allowed to continue in broad daylight! The laws that needs to be tweaked are the ones dealing with accountability and political corruption.

  37. I’ll repeat my prior statement views on the “I want to wash my mouth out with Ivory Soap when I say it” oxymoronic American Invents Act (AIA): the AIA is an utter sham, tainted and corrupt. Like everything else that comes out of a Congress that has no shame whatsoever.

  38. The vast majority of these 900 or so cases involved expired patent numbers inadvertently left on the products with no intent to deceive anyone

    Without intent to decieve, the existing law is sufficient. Why the need to change?

    However, laziness and not making sure the product is covered by a live patent is something quite a bit different isn’t it? Those simply marking without care are deriving the statutory benefit without heeding the statutory requirements. How fair is that?

    The simple way to avoid “this racket” is to police your marks – as is simply required by law. I have no pity on those who choose to mark for the benefit of law and then seem to not quite remember the duty of law portion. If it is too tough to know when to remove the mark, then do not mark in the first place.

    Be that as it may be, the neutering of the marking law does seem to be a foregone conclusion. I think it only fair then to also remove the benefit of marking from the law. Go ahead and mark away – just don’t expect to recieve benefit without any duty. Take the benefit away and then we will see who sings a different tune on “it’s only a mark.”

  39. My congressman voted for this law. When questioned, his staff told me that the lobby wanting the law was more organized and bigger than the opposition. As usual when it comes to Washington money trumps fainess or the constitution. Congressman Peter Roskham will never get my vote again. I consider him a sellout. I am tired of all the faux concern for constituents when the big money is all they care about in my opinion. Anybody reading this in the Illinois 6th Cong. district take note- your congressman Republican Peter Roskham Is in lockstep with Obama on this one.

  40. I’m a patent attorney. For myself, this will be great! I’ll have to advise clients to file early and often. And I can charge more! That will get rid of my little guys.

    But I am fighting tooth and nail against this law. And everyone with a bit of human decency would. Patents are about dreams. This law kills the dreams for all the little guys.

  41. The vast majority of these 900 or so cases involved expired patent numbers inadvertently left on the products with no intent to deceive anyone. Cynical plaintiffs knew there was no deceptive intent in these cases, but they also knew that dragging a defendant through discovery would cost it serious cash. So, make a settlement demand below defense costs, split the loot with the feds and walk away with some free money. What a racket.

  42. Yeah, because we should all be able to mark our products with patents that are either expired, do not exist, or do not cover the article with full immunity!

  43. the truth is right there in the Senator’s pocket – next to that wad of cash from the special interests groups…

    Oh, you meant truth truth? I thought you meant your version of truth. Truth that’s not so truthy. Like software is like music or literature and money is evil and all that stuff…

  44. So this is about *lawyer* jobs right? If lawyers actually contribute to improvements in society then fine, but as far as software patents go, so far I currently see less than useful contributions. The status quo forces companies to spend insane amounts on lawyer fees, so anything that nixes the atatus quo will see a flood of lawyer propaganda whining “no no! we don’t want this”… dig deeper people, find the truth.

  45. Of course Obama will take credit for this in his upcomming jobs speech.

    Its not going to help innovation. I know a prolific inventor who has said he will stop pursuing patents if it becomes law.

    Shame on Leahey, the first patent was issues to a Vermont private inventor if memory serves.

    This law will be the ObamaCare of the patent system. My health premiums just went up another 36% because of Obamacare.

  46. New to this thread, but don’t have to have any background knowledge at all to understand that this statement:

    “If you really believed that a better patent system creates jobs, you would have supported a massive stimulus that included funds for quadrupling the number of PTO employees and training them to do their jobs better.”

    is pure buIIcrap, and everybody knows it including you MM.

    Not even worth taking up, it’s THAT bad.

  47. OLG job-killing monster

    LOLOLOL! That’s even funnier than Kappos’ characterization.

    No jobs will be “killed” by the patent reform, bill. I am saddened to have to break that news to you.

    As a good friend of mine pointed out recently, this is reality:

    Black unemployment : 16.7%.

    Black male unemployment : 18%.

    White unemployment : 8%.

    25+ with at least a bachelor’s degree : 4.3%

    Patent law reform will have no measurable effect on these numbers. Take it to the bank.

    If you really believed that a better patent system creates jobs, you would have supported a massive stimulus that included funds for quadrupling the number of PTO employees and training them to do their jobs better. I’m guessing you didn’t do that, though. In any event, it’s not happening because it’s not a tax break for rich people (like me) which everyone knows is all that really matters to Boehner’s Bxggxrs.

  48. The Cubs have a better chance of winning this year’s World Series than those constitutional challenges have of succeeding. It’s game-over for the false marking fiasco. Good riddance.

  49. “What we’ll see is a job-creation engine turned loose.”

    Respectfully, Mr. Kappos, you don’t really believe that, do you?

    Because it won’t with the crimped fuel line this deform provides.

    And it won’t with the many other stultifying, nonsensical , unwise, and unfair provisions contained therein.

    As one of the many “little guys” in the giant patent universe, it’s frankly disappointing to see you supporting this.

    Very disappointing.

    But maybe, just maybe, it’s not too late to do the right thing and lend your support to killing this job-killing monster before it’s too late?

    Would you be willing to try?

  50. USPTO Director Kappos has argued that the additional funding “will give [the PTO] the ability to examine work given to us by U.S. innovators much more effectively, so they can produce products and services and economic opportunity much more quickly. . . . “What we’ll see is a job-creation engine turned loose.”

    Priceless!

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