Patent Reform: It’s now or never?

There’s an article here suggesting that, if the Senate doesn’t move now, this bill will die (because of the election and so on).  I’m not sure why the Senate would move on things like fee-shifting with Octane and all up there – I’m hopeful they’ll get this matter of statutory interpretation right; meaning, they’ll agree with me (see post below).

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

13 thoughts on “Patent Reform: It’s now or never?

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    Thanks, anon. Let’s hope that the Alice decision clarifies.

    The Alice brief is very good in raising some of the issues you and I have been discussing.

    Still, we have the problem that Alice really did not invent anything but a business method and that was notoriously old. Perhaps the Supreme Court will simply hold that when something is notoriously old, that the issue should be resolved under 103, and simply remand.

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    It’s for the best. The incoming Republican senate will be much more enthusiastic about fee shifting. That will ameliorate the troll problem a lot more than the weak tea Democrats are pushing.

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      You consider the Republicans to be anti-patent? The problems we have were brought to us by the Republicans, especially Rich and now Kennedy, Alito, Roberts and Thomas who gave us the weak tea of Bilski.

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        Republican judges have been awful on basic issues and often become patent maximalists. I expect we’ll see some real reforms when president Hillary replaces Kennedy and Scalia with moderate centrist judges.

        On the other hand, Senate Republicans are not much enamored of lawsuit abuse and gaming the justice system. They have long favored more fee shifting to protect large and small business from trolls. I don’t vote R, but I’ll take help where I can find it. My own party is far too much in the pocket of the Democratic entrepreneurial plaintiffs’ bar to favor fee shifting in general, even though the abusers in the patent bar are mostly Rs.

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    I’m hopeful they’ll get this matter of statutory interpretation right; meaning, they’ll agree with me

    The Dr. of lol
    Dr lol
    dr oll

    1. 1.1

      Professor, I think the Senate really needs to shelve patent reform pending the works of the Supreme Court on all the pending cases there. All are relevant to the chaos caused by the Federal Circuit.

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        I temper this last remark with the caveat that a substantial reason for the current chaos is the Supreme Court’s decision in Bilski.


          You need to go back further than that Ned.

          Do you not remember when I asked you to fill in the blank with bad Court decisions and the only Supreme Court case that you offered that would not fill that blank was Myriad?


            Well, anon, I thought the claim in Myriad was to a man made composition, in which case Lourie was right. When construed as it was by the Supreme Court to read on the sequence, then the Supreme Court is right.

            Myriad still confuses the patent office because it is so different from Hand’s interpretation in Parke-Davis. I think the PTO will need some time to figure Myriad out.


              As I recall, we did not see eye to eye on that case in the lead up to the Myriad decision.

              Seeing as you are one of the few regular posters that recognizes (or at least admits) that I was right in that case, have you contemplated revising your historical view based on any reflection of our past discussions?


              anon, you were right on Myriad, and I now believe you are right on 103 to the extent it was intended to cabin anything based on knowledge. If the basis of a rejection is that it was known, then the proper place to analyze is 103.

              Such was the Bilski majority. It held the claims abstract because hedging was known. That is not a 101 concern, or at least, should not be.


              We also may agree that the majority decision in Bilski was in many ways a cop-out.

              My inside track information on that decision was that Stevens refused to budge (even though others knew he was wrong – even if he himself was not entirely convinced that he was right. He had fallen in love with the idea of bookend decisions to his career on the bench.

              The best that could be salvaged (recall that the Bilski decision was released at the end of that Court’s year) was the two holdings that Bilski was not going to have a patent and that MoT was not a requirement.

              The “abstract” notion was in a very real manner, a mere patsy.

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