The Intellectual Property Owner’s Association (IPO) has taken a new stand on patent reform through its passage of three specific resolutions in reaction to the pending Senate bill S.3818 that had been supported by Senators Hatch and Leahy. Resolutions:
(1) supporting a requirement that a court award attorney fees to the winning party in most patent cases; [fees “shall” be awarded unless the losing position was “substantially justified”or if the award would be unjust because of special circumstances].
(2) opposing any change to give substantive rule-making authority to the USPTO; and
(3) opposing any right for an interlocutory appeal from claim construction decisions in patent litigation.
IPO is the major US trade organization representing the intellectual property owners (with a focus on patents). Although traditionally, IPO supported very strong patent rights, more recently the organization’s membership has come to a more balanced position. Of course the balance of power within the IPO is still highly shifted toward large property owners. This tilt comes-out in the IPO’s support of the fee-shifting loser-pays rule (something similar to the English Rule). The English Rule is thought to be a killer for contingency fee litigation and gives a big incentive for (traditionally well monied) defendants to drive up litigation costs even further.
It is also intriguing that the IPO opposes granting the PTO rule making authority. This indicates that, contrary to popular perception, the PTO regulatory behemoth has not been “captured” by industry. Rather, industry believes that it will have more success shaping the law through the courts and through congress than it would in lobbying the PTO director and the Administration.