Patent Reform Passage Likely Today

The Senate has scheduled to vote on final passage of H.R. 1249 for 4 p.m. (ET) today.

A handful of amendments to the bill have been proposed. However, none of them are likely to be approved. President Obama will be speaking to a joint session of Congress later this evening.

Sen. Coburn has proposed an amendment to absolutely prohibit fee diversion — allowing the USPTO to spend the fees it collects.

H.R. 1249 includes a provision that would retroactively lengthen the deadline for applying for a patent term extension.  Sen. Sessions has proposed an amendment stripping that provision from the bill. This particular provision of the reform has no other purpose than to reinstate the The Medicine Company’s (MDCO’s) patent covering its Angiomax drug.  The law firm WilmerHale is on the hook for substantial malpractice damages due to the filing debacle. These two firms have spent around $20 million lobbying Congress on this issue.

Sen. Cantwell has proposed separate amendments — The first would eliminate the the business method patent ‘transitional program.’  Failing that, a separate amendment would limit the scope of the program only to “patents claiming abstract business methods” and not to patents covering “technological” or “nonfinancial” inventions.

Sen. Paul has proposed an amendment to include the statement that “It is the sense of Congress that Secretary of the Treasury Timothy Geithner no longer holds the confidence of Congress or of the people of the United States.”

Sen. Johnson proposed an amendment to limit all regulatory action by any federal agency until the US unemployment rate drops to 7.7%.  

54 thoughts on “Patent Reform Passage Likely Today

  1. Too bad Sen. Coburn’s amendment never had a chance. I understand that Congress simply wasn’t in the mood for a fight over patent reform, particularly after the debt ceiling debacle. Unfortunately, the USPTO and independent inventors will likely suffer the consequences for our legislature’s lack of will.

  2. Agreed on this point. Both parties have sold the American patent system down the river in exchange for scratch. I just wanted to point out how different it was in 1952. Federico was given the task of writing the statute. He consulted Ashton of the APLA and Rich of the NYPLA. They brought representativeness of all the major bar associations together for a meeting. They then appointed two, Rich and Rose, to write the bill, but still they all had input and they all had approval, including, I might add, Federico.

    What a contrast that process was to this one where the PTO was not charged with leading the effort, the major associations did not involve their membership or ask for their opinions, or anything like that.

    This was a private bill advanced by a few for their private benefit. Crony capitalism anyone?

    The whole process stinks to high heaven.

  3. They just admitted in the record that part of this bill is specifically intended to save banks from patent lawsuits.

    Not a surprise…only surprised that they’ll actually admit that in the record and still be fine pushing this POS forward.

  4. Although I’ve always been a Democrat, I’m not taking party sides here.

    Both are surely at fault in this instance. Leahy (a Democrat) started this disaster. And, Obama won’t shut up about how great it will supposedly be for our economy (personally, I believe he simply doesn’t understand what’s in it).

  5. Yes. But the basic point is that both Rich and Rose wrote the statute, not just Rich. Moreover, it was a joint effort by the who patent bar lead by Henry Ashton of the APLA.

    Later, the NYPLA got Rich onto the CCPA during the Eisenhower administration. That makes him a Republican appointee, just as is his acolyte, Rader.

  6. American and foreign businesses are not taking advantage of americas greatest asset myself the master inventor. Wile there is almost nothing good in the new reform the first to file combined with investment in fileing partnerships and manufacturing could open up jobs large scale. without the right investment though nothing goes anywhere. I certaintly dident get all I wanted in reform but this may be enough.I usually get 200 marketable conceptions per year and thats how many valuable patents previously to 2004 have been filed yearly its not a coincidence.

  7. This reform coupled with non investment in top marketable IP conceptions means jobs creation will not be restarting at all. Increasing product demand satisfaction with nothing new entering the market mean attorney layoffs theoretically Is there an attorney in the house.

  8. Anon, from the NYIPLA history:

    “The success in passage of the Lanham Act and the discontent among the patent bar, as reflected in Mr. Langner’s “Incandescent Spark” play, induced an effort to revise the patent laws which had last been given major legislative attention in 1870. Our Association played an active and major role in that effort. In 1948, at the direction of then President Robert W. Byerly, our Committee on Patent Law and Practice, chaired by Alexander C. Neave, and including Giles Rich, drafted and had introduced a bill to overturn the Mercoid Cases, 320 U.S. 661 (1944) and 320 U.S. 680 (1944), which had virtually eliminated the doctrine of contributory infringement and expanded the misuse doctrine. The 80th Congress adjourned without acting on that bill, but similar bills were introduced in the 81st Congress.

    The Subcommittee on Patents, Trademarks and Copyrights asked Pasquale J. Federico of the Patent Office to draft “an overall patent revision bill.” Mr. Federico consulted with prominent members of the patent bar and this Association, including Giles Rich and Henry R. Ashton (then also President of the American Patent Law Association). At a meeting on February 8, 1950 of seventeen patent law associations, Giles Rich and Paul Rose were appointed as a two-man drafting committee on behalf of the National Council of Patent Law Associations. Over the next two years, after multiple meetings with Associations around the country and many revisions thereof, the bill was submitted to the House and ultimately became the law.

    The activity leading to the 1952 Patent Law began in the twenty-fifth year of our Association when Giles Rich was our First Vice President. After the 1952 Patent Act was passed, our Association devoted its efforts toward having the President and Congress appoint a patent attorney to the Court of Customs and Patent Appeals in an effort to strengthen the patent system. In 1956, Giles Rich, one of the moving forces behind the 1952 Act, was appointed to the Court of Customs and Patent Appeals, the predecessor of the Court of Appeals for the Federal Circuit, on which he still sits. Judge Rich became the first member of our Association and, it is believed, the first registered patent attorney ever appointed to the federal bench.”

    link to webcache.googleusercontent.com

  9. The worst part of all of this is that it is direct evidence that our government is for sale. Our current act (for the next few days, at least) was written free of influence by financial incentives (by Giles Rich), and the act was quite well thought of (by my old well-respected law professors, for example). This reform – on the other hand – has been driven only by lobbyist dollars. That, in my personal view, is a sad commentary on the state of America.

  10. All true, Malcolm. Dennis is quite entitled to his opinions, just as you are entitled to yours and I am entitled to mine.

    Furthermore, I think it is quite useful for Dennis to hear from us to the extent that we disagree with him, equally as much as all of us benefit from the vigorous debate we all engage in with each other on a daily basis. I find participating in the discussions here quite educational.

  11. The United States has lost jobs due to poor corporate governance that places a premium on short term thinking (and pays the CEO handsomely for it), trade agreements that disadvantage American labor, immigration (non) policies that permit the substitution of cheap immigrant labor for more expensive citizen labor, and the decline of American manufacturing. Patent law has had little to do with any of this either way, and neither will the few reforms presented in this legislation.

    This is not to be taken as an endorsement of the legislation — it reeks of industry and even company specific favoritism — just an acknowledgment that the work of the patent bar is not as important to the state of the economy as we might want out clients to think it is.

  12. “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

  13. Same bloody system that has led to the murders of the worlds only three inventors of everything in the past.Primative brutal and disgusting not to mention civalrights anialating. Except this new defination of If you dont file someone else can means legalization of intimidation and indegency discrimination A new and disgusting level.

  14. No kidding. Next thing you know the politicians that we elect to Congress will be passing laws to regulate what can be patented!

  15. It is kind of interesting that Dennis isn’t representing his readers.

    Not really.

    Based on the comments here, quite a few readers of this blog (and their sockpuppets) couldn’t rationalize themselves out of a wet paper bag. They live in an alternate reality where the only purpose of USPTO is to rubber stamp the crxp claims that they file and any event or utterance that contradicts that reality must be confronted with pathetic whining and accusations that the person “works for the PTO.”

    Since these txxbxxgxr types obviously know how to use a computer and start their own blogs, I don’t see any reason for Dennis to strive to represent their “views” about anything.

    Do you really not understand how a blog works? The blog represents Dennis’ views (and perhaps Jason’s and Lawrence’s) about what is interesting and important. It’s not Dennis’ duty to act as a mouthpiece for the people who read his blog or who comment here. That’s simply ridiculous.

  16. Nobody is forcing you read this blog

    Funny thing is, Piece of Blue Sky’s viewpoint is reflected in the overwhelming majority as witnessed by the recent poll.

    The VOCAL minority, on the other hand, seem to think that they own this blog. I don’t think squatters rights apply, no matter how well practiced at squatting that vocal minority may be.

  17. “ignored…”

    something Mooney is quite familiar with. I think Mooney said the same thing about the New Rules, which he was sure would pass…

  18. I would also like to thank PatentlyO for thier desperate attempts to politicize patent law (note the question in the poll regarding viewing yourself as Democrat or Republican).

  19. “…what almost everyone informed in D.C. also says…”

    They said that about the New Rules too.

    So much for the collective wisdom of the “informed” herd.

  20. Isn’t that a sad thought. The two of us arguing for five years. What a way to spend a life.

    But, really, MM, aren’t you over reacting to his comment? It is kind of interesting that Dennis isn’t representing his readers. It is fine that he isn’t, but interesting.

  21. Gee, NWPA, it is hard to tell if that is really you or just computer glitch serving up one of your lame comments from five years ago.

  22. As the former top cheerleader for the “what, me worry” crowd, I’d like to thank ping for moving on to somebody else to stalk.

    And I agree with Paul. Competent practitioners, whether they are in favor of the bill or not, will adapt and be just fine. Idi0ts like ping will not be fine.

  23. September 8, 2011, 4PM, the day the entrepenurial engine of the U.S. died…

    September 8, 2011: the day “Flippy” felt a drop of rain, screamed that the “sky is falling”, and was ignored by reasonable people everywhere.

  24. H.R. 1249 includes a provision that would retroactively lengthen the deadline for applying for a patent term extension. Sen. Sessions has proposed an amendment stripping that provision from the bill.

    Good for Senator Sessions. This is easily the worst provision in the bill, a striking example of corporate welfare in its most blatant and disgusting form. Keep an eye out as to who votes for it and who votes against it. Then watch some of those same yea voters complain about “corporate welfare” and the rest of yea voters (even worse) complain about “entitlements”.

  25. However, the emotional response (perfectly justified) stems from the rather cavalier “we discussed some details of the proposal and ultimately concluded that patent law will be roughly the same under the new law”, which is blatantly false (no BINGO here). There are indeed substantial procedural and substantive changes unlike anything for the past 170 years.

    Those who do not see how insulting a comment like that is

    WAAAAAAAAHHHH!!!!!! WAAAAAAAAAHHHHHH!!!!!!!!! Dennis isn’t saying what I want him to say!!!!!

    Nobody is forcing you read this blog. Take your sockpuppet and go someplace else.

  26. Sen. Johnson proposed an amendment to limit all regulatory action by any federal agency until the US unemployment rate drops to 7.7%.

    Citizens of a state who would elect a person this stxxxxd to office actually do deserve to be unemployed for the rest of their lives. I suppose death by food poisoning would also be fitting.

  27. is a leaning toward REALITY.

    Paul F. Morgan, top cheerleader for the “What, Me Worry” crowd.

    The point of the matter is that there is a pronounced leaning and it is not one of “reality.”

    The reality is that this is a major change in patent law.

    Is it the end of patent law? No.
    Does this change affect the substantive area of what is patentable subject matter? Yes – in a limited fashion.
    Is it the “right” change (right being defined as a chane to actually address the problems of poor and untimely examination)? No. (The Great Unaddressed Problem)
    Do these changes actually substantively hcane the funding picture: No. The Office still only works to a pre determined budget level and then ALL monies over that are “stolen.” This includes any monies genereated from the 15% hike. There is no actual control to use that 15% hike for the reasons offered (this is still an innovation tax sham).

    However, the emotional response (perfectly justified) stems from the rather cavalier “we discussed some details of the proposal and ultimately concluded that patent law will be roughly the same under the new law“, which is blatantly false (no BINGO here). There are indeed substantial procedural and substantive changes unlike anything for the past 170 years.

    Those who do not see how insulting a comment like that is, just don’t know what is going on (and that includes quite a few congressmen and senators).

  28. Ive laid out in these blogs the right way to go and almost nothing good has been adopted and the wording is usually altered to the point of reversing the original intent these people need new leadership and new emphysis on drawing up bill provisions by citizens your voice in washington is not herd transperancy means in the one and out the other with nothing but hot air in between. A brutal regressive piece of work that will continue the discrace of corruption that the patent system is today and extend job losses far into the future until its repealed almost in its entiraty We nust continue to sue with reguards to the frauds and cival rights violations contained in this bill untill it is overturned for the good of all of humanity.

  29. Sen. Johnson proposed an amendment to limit all regulatory action by any federal agency until the US unemployment rate drops to 7.7%.

    These sick txxbxgger xxxxs need to drop dead a.s.a.p.

  30. I told Harry that LOFFLER sent a sheet sideways, and then cut and pasted it to reflect he was the Patentee. and nothing was done. He was my Lawyer. I was in Fla when I hired him. I fired him over and over. At least 40 times at the USPTO. At least 40 times a the FLA. BAR. And I also sent him Firings at least 40 times. And the FLA. BAR told me he did not have to give me my Files. BECAUSE HE CLAIMED IT WAS HIS PATENT? I know that is a Lie, AND SO DOES THE USPTO! The last time I fired him he kept it for at least 10 DAYS. IT WAS DELIVERD AND ACCEPTED EXPRESS MAIL. AND THEN A RR CARD WAS ALSO KEPT FOR A VERY LONG TIME ALSO SENT BACK TO ME. THE EXPRESS MAIL WAS DELIVERED. HE SHOULD HAVE BEEN FIRED LIKE SO MANY TIMES BEFORE.

  31. The only “leaning” in the above Patently-O report is a leaning toward REALITY. It is simply reporting what almost everyone informed in D.C. also says is going to happen, whether many patent-people want it or not, and whether or not further belated Don Quixote “tilting at windmills” complaints continue or not.

    After tomorrow, absent passage of any amendment, everyone who has patent clients has to just start seriously reading and understanding the new patent law, “warts and all” as the saying goes. No doubt we will all be soon swamped with offers for CLE programs for cash and/or law firm publicity.

    However, as happened after the major 1999 AIPA patent law changes, there is still at least an opportunity for a non-controversial “technical corrections” bill for unintended ambiguities and unintended consequences in, and/or unintended judicial interpretations of, this legislation. So everyone can and should keep on publicly questioning all of those drafting errors that can be identified. There are bound to be some with such a long bill.
    Also, there can be a lot of valuable “damage control” by patent practioner input on the many new PTO implementation rules packages required by this legislation. E.g., especially the new PTO rules that must be written for how the PTO can possibly validly handle the strange new totally ex parte reexamination [entirely by patent owner input only] for total IC whitewashing of any IC issue. Also, the PTO implimentation and claim scope rules for the new limited term inter partes reexamination of “business method” patents. Etc.

  32. I am confused about the second Cantwell amendment. Shouldn’t patents claiming “abstract business methods” fail section 101?

  33. And if there is any doubt about the leanings of PatentlyO, just read the headlines. Where is the blog with the headline saying -Ill conceived patent reform bill up for a vote today, most of the patent bar according to a PatentlyO poll does NOT support the bill-

  34. September 8, 2011, 4PM, the day the entrepenurial engine of the U.S. died…

    If you want to kill tech sector jobs, why not wait three more days until 9-11 for real impact.

  35. Sen. Paul has proposed an amendment to include the statement that “It is the sense of Congress that Secretary of the Treasury Timothy Geithner no longer holds the confidence of Congress or of the people of the United States.”

    See, America, this is what happens when you vote for a bunch of clowns in funny hats.

    Does Sen. Paul try to insert this amendment in all proposed legislation, or was there something that inspired him particularly in the Patent Reform Bill?

  36. I hope Senator Coburn’s amendment makes it in before the Gong of Doom sounds for the last time on the AIA. That would at least salvage something good out the mess that the AIA is.

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