Senate on Patent Reform

By Dennis Crouch

As the House of Representatives did, the Senate’s approach is clearly bipartisan. The Senate Judiciary Committee is moving forward with the Leahy-Lee patent bill. The whole focus of the Senate is to find “meaningful but targeted reform” that addresses patent troll activities. Amendments to the originally proposed bill are being hashed out this weekend and the Judiciary Committee is tentatively scheduled to vote on both the amendments and the final bill on Tuesday, April 8, 2014. The committee members have requested input from constituents over the weekend on particular aspects of the bill that could be changed/improved.

Senator Charles Schumer spelled out his view on patent trolls in this week’s committee business meeting:

Patent trolls are destroying the lifeblood of America. Companies are getting snuffed out by these patent trolls. They are like the old hook worm. They do nothing; they attach themselves to the inside of the body and eat the food that other people have worked to cultivate and digest.

Other’s on the committee appear to share Senator Schumer’s views, but there continues to be little agreement on what it means to be a patent troll. Schumer also blames the PTO for continuing to grant ridiculous patents.

Senator Durbin and others expressed concern that the current bill (as well as the House Goodlatte bill) goes too far in making patents difficult to enforce across the board rather than targeting abusive behavior. Some companies have complained that the proposal would “move us toward a business model that does not rely upon patents.” (Arguing that such a result is a bad thing.)

The current debate on fee shifting and pleading requirements is basically a matter of degrees. Senator Lee and his cohort would prefer automatic fee shifting to the prevailing party while Senator Leahy would require some additional showing of misconduct before shifting fees. The ownership transparency elements have proven a bit difficult because many of the 1% want to keep their ownership interests secret.

It appears that there is not significant weight behind a proposal to expand the covered business method review program beyond the current financial services limitation.

30 thoughts on “Senate on Patent Reform

  1. ‘The whole focus of the Senate is to find “meaningful but targeted reform” that addresses patent troll activities’

    False. It is an attempt to help big companies rob and crush their small competitors.

    All this talk about trolls and so called ‘patent reform’ is just spin control by large infringers and their paid puppets to cover up their theft.

    link to npr.org
    link to npr.org

    The patent system now teeters on the brink of lawlessness. Call it what you will…patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: “we’re using your invention and we’re not going to stop or pay”. It’s a pure red herring by large invention thieves and their paid puppets to kill any inventor support system. Their goal is to legalize theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. To infringers the only patents that are legitimate are their own -if they have any. Meanwhile, the huge multinationals ship more and more US jobs overseas.

    It’s about property rights. They should not only be for the rich and powerful -campaign contributors. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they included inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity and the jobs the commercialization of those inventions bring. For 200 years the patent system has not only fueled the US economy, but the world’s. If we weaken the patent system, we force inventors underground like Stradivarius (anyone know how to make a Stradivarius violin?) and in turn weaken our economy and job creation. Worse yet, we destroy the American dream -the ability to prosper from our ingenuity for the benefit of our families and communities. To kill or weaken the patent system is to kill all our futures. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. If we cannot own the product of our minds or labors, what can we be said to truly own. Life and liberty are fundamentally tied to and in fact based on property rights. Our very lives are inseparably tied to our property.

    Prior to the Supreme Court case eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the eBay decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

    Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    For the truth about trolls and so-called patent reform, please see link to truereform.piausa.org.
    link to piausa.wordpress.com
    link to hoover.org
    link to ssrn.com

  2. Senator Schumer . . . and why should anyone put any weight whatsoever in what that man has to say about intellectual property matters. Does anyone believe that this man gives a hoot and holler about intellectual property except to the extent that he can extract some working capital from interested parties (stake holders) by asserting this position. This alone should render any opinion on the issue of patent trolls to be completely ignored.

  3. “Schumer also blames the PTO for continuing to grant ridiculous patents”

    Sure, like the one to Datatreasury that just happened unfortunately to read on all of Sen. Schumer’s well heeled, .0001% constituency: BIG BANKS

    How… inconvenient! But nothing a few shekels and a few shenanigans in the Senate by Schumer couldn’t fix, by passing a special “BIG BANK DISPENSATION” to make sure these patents get examined, and reexamined, and reexamined again, until they don’t exist:

    link to blog.simplejustice.us

    Problem solved! Ah yes, Sen. Schumer, the best politician big corporate anti-patent interests can buy – but always there to help the “little” guys….

    1. like the one to Datatreasury that just happened unfortunately to read on all of Sen. Schumer’s well heeled, .0001% constituency: BIG BANKS

      Wow, sounds like a really impressive claim.

      Care to share it with everyone, JNG.

      Love the Robin Hood outfit, by the way. Do you wear that around town?

      1. LOL – look at Malcolm attempting to defend BIG BANKS.

        Strange bedfellows, this attack on the patent system makes.

        Attacks from the Right and attacks from the Left.

        1. ook at Malcolm attempting to defend BIG BANKS.

          I’m not defending big banks at all. I support all kinds of laws which regulate both big banks and large corporations. And increased taxes.

          Anyway … you were saying?

  4. “It appears that there is not significant weight behind a proposal to expand the covered business method review program beyond the current financial services limitation.”

    Because congress is dead set on trying to address symptoms rather than the disease.

    1. Weird huh? You would have thunk that Ned’s supreme wisdom would have showed up with a simple and direct ban on business methods (or software) if that was what Congress really wanted to do.

      1. I often wonder if pretty much all of the lawlyers hanging out with the congresscritters are pro-business method/software patenting. Which would explain why they’re slow to understand the disease. Or if the 1%ers that don’t want their patent holding to be known are pressuring them to uphold their rent seeking scheme.

        In either event, congress is slow to act, by design. Slowly but surely they’ll get to the problem, same as usual.

        1. 6, good observation.

          Most of the DC types are big fans of GS Rich and “strengthening” patents by expanding patentable subject matter, patent scope, and marginalizing obviousness.

          So, broad patents issue on business methods and common internet practices that are obvious as all get out. This spawns an industry of patent holdups professionals, who use these “valid” patents to do as Schumer said. The banks, retail industry, software based businesses cry foul.

          So they go to Washington where the issue is diverted into a “litigation” problem or a PTO malfeasance problem where the problem all along is and has been the patent bar, like the fox, protecting the chicken house. It was these folks who took on the Supreme Court in ’52, promoted Rich to the CCPA, who removed other circuit courts in the ’80s so that Rich would have sole say on patent law, and who will never agree that they are the problem, and that their obsessively promoting their own self interest is destructive of the patent system as a whole.

          If congress were serious about reform, they would recognize that the patent bar has too much influence. They should not pass legislation specific to the patents, but look more closely as to why patents are subject to so much abuse — why they cover whole industries with functional claims, whey they cover business methods, whey they are allowed even though obvious, etc. They will discover the source of the problem is the Federal Circuit, which, in many respects, continues to be the lapdog of the patent bar. Break that court up, and the problem will largely vanish.

          1. destructive of the patent system as a whole.

            ..because of a Supreme Court that intended that the only valid patent was one not yet before that body….

            With Ned’s penchant for ‘saving’ the patent system, who needs Charles Duell?

          2. Well you come on a little strong, but yeah, the general gist is pretty much dead on.

            I mean, you can’t blame them for advocating for themselves and their own self-interest. But someone needs to be watching over them.

  5. “The ownership transparency elements have proven a bit difficult because many of the 1% want to keep their ownership interests secret.”

    Lulz. Who’d a thunk it?

    1. LOL – I don’t want to steal Malcolm’s thunder with a demand for facts and validated proof, so I will let him champion his usual position here…

      ;-)

  6. Overall though I agree with the guy crying about how difficult it will make it to assert legit patents. It’s funny to watch the sht hit the fan now that the softiewafties and business method folks are polluting the patent waters.

  7. “Schumer also blames the PTO for continuing to grant ridiculous patents.”

    Maybe he should make a statute that says people shall not be entitled to a patent if it is “ridiculous”.

        1. All of them 6.

          If you (the royal you) actually just did your job, ‘ridiculous” would take care of itself.

          Now why am I not surprised that you do not understand this?

          1. “If you (the royal you) actually just did your job, ‘ridiculous” would take care of itself.”

            Well I disagree. I say my opinion is that to address the senator’s concern we should simply make it a law that the PTO shall not pass “ridiculous” patents to issue by just putting a statement to that effect into 151. Or else tack on a lack of entitlement to 102. Or both.

        2. Like most bureaucracies, the USPTO always tries to place blame for their deficiencies outside the agency.

          That said, most of the problems in the agency are due to incompetent management, and much of that is due to political hacks being allowed to use the agency for the benefit of their corporate handlers.

  8. Serious 570 nm slant there Professor.

    Could you at least try to hide your views? At least try to give a little impression of objectivity?

    1. For many years academics derived extra income from publishing books.

      Today many derive much more income from being champions for big business interests.

      I have long leaned on Professor Irving Kayton as a source of expertise. I really like him, he speaks frankly and he earned his stripes.

      Most of those professing to be experts today are not. They carry water for big business and in addition to cash big business promotes them as experts. Public relations hype is not a good substitute for actual expertise.

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