Meaningful Patent Reform

By Senators Patrick Leahy and Orrin Hatch, Full editorial in the Washington Times 2/15/08

“. . . For several years, modernizing the patent system has been at the front and center of our mutual legislative agenda. Meaningful patent reform is crucial to America’s ability to maintain its competitive edge in the world, and now — after years of careful spadework — Congress has the chance to move forward.

The Patent Reform Act of 2007 (S.1145) is the product of years of deliberation and study within Congress and by many esteemed agencies and institutions, including dozens of hearings with the testimony of scores of witnesses, extensive and substantive mark-up sessions, and hundreds of meetings and discussions with countless stakeholders representing a sweeping array of interests in the patent system.

. . . the current law was last thoroughly updated more than 50 years ago, and much has changed since then. Think about this: The last time the patent system was significantly changed, the structure of DNA had not been discovered; gasoline was around 27 cents a gallon; and we had not yet sent a man to the moon. Our economy is no longer defined by assembly lines and brick-and-mortar production; we are living in the Information Age, and the products and processes that are being patented are changing as quickly as the times themselves. Unfortunately, Congress has neglected to modernize our patent system to keep pace with the boom in American innovation. Recent Supreme Court decisions have nudged things in the right direction, reflecting the growing sense that questionable patents are too easy to get and too hard to challenge. But the Court is constrained in its decisions by the laws on the books. It is time to dust off and refresh our patent laws.

If we are to maintain our position at the forefront of the global economy and continue to lead the world in innovation and production, we need an efficient and streamlined patent system that issues high-quality patents while limiting wheel spinning and counterproductive litigation. Our bipartisan reform bill is a solid step toward achieving these goals.

In 2003, the Federal Trade Commission reported that patents of questionable validity were inhibiting innovation and competition, harming consumers and businesses and our overall economy. The FTC further found that relying on court battles to challenge questionable patents was unduly costly and cumbersome. To address this problem, our bill would set up an administrative, post-grant review procedure. This would not only cut down on legal costs for the patent holder and the patent challenger, but it would also leave the issue to those best equipped to review patents — the experts at the U.S. Patent and Trademark Office.

We must also restore fairness to the rules that govern how courts determine damages when a patent is infringed. The threat of excessive damages is ruthlessly curtailing progress, and the loss of jobs and innovation is directly linked to litigation costs. . . .The goal of our reforms is to ensure that patent holders will be able to obtain appropriate compensation in case of infringement.

Under today’s rules … [p]laintiffs can “forum shop,” filing their lawsuits in jurisdictions that have virtually no relevance to the underlying case, but everything to do with where the plaintiff stands the best chance of winning the case. Our bill would prevent this gaming of the system….

Another provision to clarify and limit use of the so-called inequitable conduct defense would also bring balance to the patent system. …

As legislators, we know we are headed in the right direction when everyone is complaining that the entire bill is not going their way. We see this as a necessary, albeit somewhat difficult, part of the legislative process. But we welcome it. But at the end of day, we are confident that we will resolve the remaining issues in ways that should make everyone comfortable and will ensure final passage.

The Senate has a tremendous and historic opportunity — and a constitutional responsibility — to further strengthen our nation’s competitiveness through meaningful patent reform. Now is the time.

42 thoughts on “Meaningful Patent Reform

  1. 41

    Subject: Senator Jeff Sessions, honesty, justice and integrity.- —–(Tell it like it is).—–
    An amendment to the Patent Reform Bill, sponsored by Senator Jeff Sessions, has been withdrawn by the Senator himself. The amendment, received approval from the entire Senate Judiciary Committee. It had the backing of (The Coalition for Patent Fairness) – (fairness by definition – freedom from dishonesty and injustice). The coalition, a group of one hundred and fifty high-tech companies, was, backed by (The Financial Round Table.) The Financial Round Table, represents the countries one hundred largest banks. These banks, now have a serious financial problem. (*They are presently involved in a patent infringement lawsuit*).A finding of willful infringement, will subject the banks to treble damages. (Three times the amount, that a jury would award, as per existing patent legislation.) The potential cost to the banks,? Billions of dollars! If passed, the amendment would have shift a one billion dollar expense, from the banks, to the American tax payer., By Senator Sessions own admission, “I don’t know how (the provision) can be modified to pass a constitutional muster. This Senator was attempting to add, an unconstitutional amendment, to the Patent Reform Bill. I question his motivation. I assure you, It had nothing to do with honesty, justice or a burning desire to perform his civic duty. The Senator stated,” I think this has more to do with lobbyists, than it has to do with merit”. ( Lets call a spade a spade). This action had to do with lobbyists, buying politicians! It had to do with, personal gain! It had to do with a lack of integrity! ( It had nothing to do with merit!)
    (*The case, Data Treasury VS. Wells Fargo, and numerous other banks, was filed on Feb 24,2006 and is still in progress.*) (There is no room in this equasion for banks,attempting to buy a new law because they are dissatisfied with existing patent legslation).You break the law, you pay the price!

  2. 40

    berman and hatchs new reform amendments deal yet another blow to the justice system in the latest obstruction attempt. Their Latest attempt says they are clarifying and limiting the use of inequitable conduct defense to bring balance to the system.claiming that when it is misused it needlessly drives up the cost of litigation. The reality is this would deny justice to those inventors that have been cheated by the theft of their intellectual materials this coupled with their elimination of the reissuance of patents will totally eliminate any sembelence of justice associated with our patent system when it is found that inventors have been cheated originally.

  3. 39

    there is no purpose in in innacting patent reform when the incentives to the inventor have already been destroyed. since the actual inventor will not end up with the patent there is no sence in any provision changes that dont favor the inventor.Without original invention you have nothing just as you have now = the end of marketable invention filed with the patent office. = the end of human advancement.No need for attorneys R.D. people, business startups economic stimulus Ect.

  4. 38

    “Congress should scrap this non-sense, and give the USPTO the explicit authority to enact rules implementing the suggestions made by Hal Milton, in his Patent Preparation Mandated by the Law article, in JPTOS, and posted here:…”

    Thanks, but no thanks. I don’t want our patent laws drafted by the guy who was still teaching his clerks to draft “characterized by clauses” for all US applications in the 21st century. Just curious, is he still teaching that today?

  5. 35

    Sorry about that, I stirred up a bunch of mess then left town. Anyway, yeah VA, bad patents being asserted, and don’t even try to “lol, there is none of that going on” your way out of it. You can view the tip of the iceberg of such on TrollTracker very easily. Whom I hear Mr. Niro is wanting to sue for placing JPEG’s on his website. OUTRAGEOUS! Does anyone even remember how the term JPEG arose and why the format was made IN THE FIRST PLACE? Here’s a hint, it was specifically for the purpose of providing high-enough quality image storage/display on any computer medium within a hugely reduced amount of space (compared to bitmap etc.). Unless Mr. Niro’s inventor were the person/group of corporations which came up with the JPEG standard then I’m not even sure if there is a more clear cut case of teaching suggestion AND motivation obviousness under 103 that I’ve ever seen and I could probably dig up the people that made it right now. This is not even to mention the fact that he only really uses it to bully around companies/people who aren’t able to fight it (who sues a porn site for putting up JPEGs? I mean really, if you’re confident in it, hit MICROSOFT). That’s the real problem, they use it, like you said VA, in a rational manner, is the cost of the settlement/standing down worth more than fighting it to the defendant? Yes, except the whole premise of the threat is based on bs that happened to get through the PTO. It all comes down to the impact OVERALL that the bad patents have, not just the strict litigation, but the threat of litigation as well. Being given the power to call in the gov. to stop others from doing something (ANYTHING) is a big deal and should come with MORE THAN adequate safegaurds against such power being lightly thrown around. Oh, and fyi, a 14 hour search is not even moderately adequate, much less more than adequate.

    Calling my comments “usual nonsense” is doing nothing more than spitting in the face of the system which is inevitably to come. Your days of horrendously ugly devil’s advocating are over, either get with the new program or step aside and retire, there are others to take your obstinately held place who are open to reason. Oh, and I’ll get back to your inability to reconcile a contradiction in another thread later.

  6. 34

    Caveman wrote:

    “Further, no potential infringer or competitor in their right mind would voluntarily walk within 500 yards of the “Second Window.”

    Hm, I would like to know myself how this “second window” would play out in the real world…

    Will infringers of my patent try to invalidate my patent right away on their own initiative or will they just continue to quetly infringe until they are sued and ONLY THEN try to use “second window” ?

    If they want to preserve some semblance of fairness in the system infringers should not be allowed to use “second window” AFTER they are notified or sued cause this is what all of them will do regardless of the patent in question
    And if somebody wants to launch “second window” opposition against my patent I should be allowed to have my attorneys to put the opposing party up for court-ordered deposition, just to clear certain things like who is really behind the action
    Otherwise Microsofts and Intels of the world would be paying good money to third parties to harrass owners of valid patents all the time

    Why not do the job right in the first place examining patents and just keep current re-exam procedures to correct few PTO mistakes ?
    This “reform” is written by infringers and for infringers…

  7. 33

    Further, no potential infringer or competitor in their right mind would voluntarily walk within 500 yards of the “Second Window.”

  8. 32

    “Recent Supreme Court decisions have nudged things in the right direction…” Am I reading this correctly???

    With all due respect to the Dreamguysandgirls, recent Supreme Court decisions have done NOTHING to advance the state of patent law. Pfaff, Festo, eBay, KSR??? give me a fargin break.

    And to Mooney, whoever you are, that vignette about the crack pipe in the lake seemed just a little to real not to be based on your first hand personal experience – you should have said no to crack long ago. Now, the explanation for your tiresome know-it-all glibness is becoming clear.

  9. 31

    There is absolutely no way that the Patent Office (at least under current management) can staff up, organize and handle oppositions. They have very well proven that they cannot even handle their current workload.

  10. 30

    Factor in too the difference between EPO civil law (no discovery, virtually no witness evidence, no trial, more or less all done on the written proceedings, court of “technical” judges needing no “judicial notice”). Still the EPO takes years and years. EPO-style opposition in a common law jurisdiction? A train wreck waiting to happen. Forget it, please.

  11. 29

    “If you think patent examiners are overworked now, wait till you see them having to deal with oppositions!
    Maybe a 30-day or maximally 90-day opposition period might be manageable, but longer than that and “reform” becomes melt-down.”

    Hello, PEGDr2000. The scheme envisioned for post grant opposition is a panel of 3 APJ’s, not an examiner.

    Of course, where the PTO is going to get enough APJ’s to handle about 8,000 yearly oppositions is anybody’s guess. (The 8,000 number is an estimate based on the EPO’s experience of about 5% of patents being opposed. As the USPTO is issuing about 160,000 patents/year, 5% opposed would be 8,000.)

  12. 28

    If you think patent examiners are overworked now, wait till you see them having to deal with oppositions!
    Maybe a 30-day or maximally 90-day opposition period might be manageable, but longer than that and “reform” becomes melt-down.

  13. 27

    Uhm, I think it’s called playing devil’s advocate. So I guess I’m going with disingenuous. :-)

    So a “facially bogus” patent claim can’t be knocked out in re-exam? The last article I read on inter partes re-exam claimed that 85+% of the cases ended up with the patent being invalidated. And I’m pretty sure not every one of those cases involved “facially bogus” claims. (Of course, inter partes re-exam is more expensive than ex parte, but I doubt it’s millions for discovery either.)

    So you’ve got “knock out” prior art to invalidate this “facially bogus” claim, but you’re gonna spend millions in discovery just so you can file your SJ motion?

    Whatever floats your boat, I guess.

    And last time I checked Malcolm’s posts, he’s the one who’s always claiming that it’s pretty easy to invalidate the patent if you can just convince the judge “that the examiner just didn’t get it,” which he also claims is pretty easy to do.

    So am I missing something?

    BTW, the “Veteran” part is in homage to examiner#6k, who’s first post (or thereabouts) was something along the lines of “I can’t believe veteran applicants and attorneys [insert usual nonsense from 6k here]”

  14. 26

    “If the claims they want to assert are ‘facially bogus,’ presumably the cost and effort to invalidate is mininal.”

    That only makes me question where the “Veteran” part of “Veteran Attorney” comes from. In case you didn’t notice, it takes summary judgment to invalidate a patent, i.e. it happens after discovery. And in case you didn’t read Bell Atlantic v. Twombly, it takes several million dollars to get past discovery in civil litigation. And in case you forgot, even the most facially bogus and obvious patent was hard to invalidate at SJ under express-teaching TSM.

    Only question left, are you being disingenuous or ignorant?

  15. 25

    Malcolm,

    So what you’re saying is the defense of, “Oh come on, your honor, everybody knows this patent is a piece of cr#p. It’s so obvious nobody ever bothered to write it down or disclose it. Whadda ya mean I gotta present some evidence that it’s invalid? You can’t be serious!” won’t work?

    The reason you don’t see any movement toward a more specialized judiciary for hearing patent cases is fairly obvious: we don’t need one.

    What makes patent law so special? Is it any more special than securities law? Or criminal law? Or medical malpractice?

    I don’t think so.

  16. 24

    “If the claims they want to assert are “facially bogus,” presumably the cost and effort to invalidate is mininal.”

    This assumes that district court judges understand and fairly apply the correct, relevant patent law.

    That is a very very bad assumption.

    This is another aspect of the current IP regime that has begged for attention for years. I don’t see any movement toward a more specialized judiciary for hearing patent cases, however.

  17. 23

    “…you seem to be suggesting that a facially bogus patent claim has never been asserted in a lawsuit.”

    Malcolm,

    I’m well aware that patents get asserted and the patentee “knows” that the validity of the claim is not a lead pipe cinch, but I’m not aware of any “facially bogus” patent claims being asserted.

    I would submit that patentees assert claims in a rational manner. If they figure the cost to the accused infringer to fight and invalidate is more than the license fee they’re offering, they go ahead and assert. If the claims they want to assert are “facially bogus,” presumably the cost and effort to invalidate is mininal. So why assert them?

    And what is a “facially bogus” claim? And who decides? (Let me guess, you do.)

    BTW, I love crack.

  18. 22

    the concept of venure shopping has its basic in the filers preception of the likleyhood of justice being upheld in the district of choice.This is of course is objectionable to corperate defendants who want jurisdictions favoring corperations.The filers are usually the underdogs trying to seek justice at a reasonable cost wile the corperations are flush with cash and greed and attorneys attempting to circumvent the justice system in any way possible.Bermans and hatches bill is another blow to justice and the domaination of the courts by the rich and corrupt. Ip regimens have never been about fairness to inventor as stated by caveman.Each blow that this new legislation deals to fairness in dealing with inventors deals a blow to out ability to maintain our world leadership in invention.

  19. 21

    “Please give us an example of one of these lawsuits that boil down to a “bad patent” beign asserted.”

    How about Minerva Ind. v. Everyone-else-on-the-planet (USP No. 7,321,783)?

    Or my personal favorite from a few years back, Ohayon v. AT&T et al. (claiming $2 billion damages from each of 7 plaintiffs, USP No. 5,952,918)?

    An exemplary claim from the latter case follows. This claim was asserted against ordinary mobile telephones, because they can be made to ring at a distance. (By calling it.) Note the functional limitation that I’ve emphasized. That’s apparently the distinction over the prior art.

    1. An apparatus for locating and recovering a misplaced remote unit, comprising:
    a base unit including a radio frequency transmitter adapted to produce radio signals in response to a user command; and
    a remote unit adapted to control at least one function of the base unit, the remote unit including: (i) a radio frequency receiver adapted to receive the radio signals from the radio frequency transmitter, and (ii) an audio circuit adapted to produce audible musical signals as sensory input to the user in response to the received radio signals, the MUSICAL SIGNALS BEING CAPABLE OF CALMING THE USER WHEN THE USER IS UNDER STRESS such that location and recovery of the remote unit may be obtained.

  20. 20

    “Please give us an example of one of these lawsuits that boil down to a “bad patent” beign asserted.”

    Are we back to this again? I thought we threw the crack pipe of “no bad patents” in the lake a couple years ago.

    Seriously, VA — you seem to be suggesting that a facially bogus patent claim has never been asserted in a lawsuit. Is that your position? How many court filings do you need to see before you join us back on earth?

  21. 19

    “An attempt, an experiment if you will, to see if we can stop some of the lawsuits that boil down to a bad patent being asserted from ever happening.”

    Please give us an example of one of these lawsuits that boil down to a “bad patent” beign asserted.

  22. 18

    “Like I always say, if you invented something and claimed only it, you really have nothing to worry about. In 50 years it’ll be accepted practice and people will marvel over how it wasn’t always so.”

    I’ll drink to that (it is Friday after all).

  23. 17

    Babel, who would you have doing the work there then?

    “The current patent reexamination procedures cost less than $15 million a year, compared to an estimated $1.6 billion a year for a post-grant opposition system modeled after the European Union (EU)”

    That’s for serious lulz, I mean come on, can anyone make a more blatantly misleading statement? Of course it’ll cost more, lots more. But, considering the costs of litigation it will save later it pales in comparison. Letting an interested party feed me some of the best art available on a case that might hurt them would make making a prima case like taking candy from a baby. I love cases that have clear art reading on them, they go so much faster than the obvious combinations. And if you pay someone to search a case for a week that might save you 20 mil. I’d say that they’ll turn up a lot more than I do in 14 hrs or so.

    Again, you guys need to see this for what it is. An attempt, an experiment if you will, to see if we can stop some of the lawsuits that boil down to a bad patent being asserted from ever happening. It gives the public a chance to assist the examiner in important cases and that’s all. They’re not going to magically get rid of your great patent just through this system. Like I always say, if you invented something and claimed only it, you really have nothing to worry about.

    In 50 years it’ll be accepted practice and people will marvel over how it wasn’t always so.

  24. 16

    Due to the efforts of hatch and berman our mighty patent system has ground to a hault worldwide. reform act 2007 and the previous system have cheated correct inventors of each and literally every invention since 1790. Until we correct the 15 or 20 methods of cheating inventors and compensate for the previous attrocities human advancement stagnation will continue.

  25. 15

    “But for the occassional headline involving cases such as NTP, I have not witnessed the opening of floodgates resulting in the award of excessive damages.”

    These “excessive” damages are, in large part, due to the defendants’ own failures. First, the failure not to seek reexam, which has doesn’t have the presumption of validity. Second, the failure not to find persuasive trial counsel or expert witnesses that could show what the damages should be. Congress should not bail out defendants who rolled the dice and lost by drastically changing the damages calculation process, which isn’t broken.

  26. 14

    Dear Pat and Orin
    If you want to make seismic changes to the system, why not make changes that will improve it. Try these:

    1. Set up a non-Article III IP trial court system, as is done with the tax system. Put IP people on the bench. Get rid of the juries, unless you’re willing to hire technical juries. Make claim construction a matter of fact.

    2. Set up an IP wing of the CAFC. The only judges that go on that bench are those promoted from the trial bench.

    3. Bring the TM system over to the patent side: allow a 90 day period for opposition of applications after publication, and then a 2 year period of contestibility after issue. After 2 years the patent is deemed virtually bullet proof.

    4. Do like most of the world does and make the file wrapper off limits for litigation.

    5. Pass a constitutional amendment keeping id1ots out of the PTO at all levels, but especially the very top and the very bottom.

    Easy.

    Bab

  27. 12

    Senators Leahy and Hatch (and our own Senators) need to hear directly from us via phone calls, faxes and e-mails

    Chances are they are not reading this blog

    I encourage all to contact them over the long weekend

  28. 11

    “The Constitution specifically directed Congress to enact a patent law, and Congress has periodically modernized that law over the last two centuries.”

    Quite interesting explication of Article 1, Section 8, Clause 8, stating that an enumerated power to enact legislation constitutes a requirement that such legislation be enacted. Moreover, since the 1952 Act was stated to be merely a “codification” of the law as it then existed, I strongly disagree that it comprised a “modernization” of the law. In fact, I submit that the last true “modernization”, if that term is even applicable, transpired with the Patent Act of 1870.

    “But the current law was last thoroughly updated more than 50 years ago, and much has changed since then. Think about this: The last time the patent system was significantly changed, the structure of DNA had not been discovered; gasoline was around 27 cents a gallon; and we had not yet sent a man to the moon. Our economy is no longer defined by assembly lines and brick-and-mortar production; we are living in the Information Age, and the products and processes that are being patented are changing as quickly as the times themselves.”

    To me this makes the case that it is Sections 100 and 101 that should be a major focus of reform, and yet these two sections have but for some minor amendments been almost completely ignored.

    “Recent Supreme Court decisions have nudged things in the right direction, reflecting the growing sense that questionable patents are too easy to get and too hard to challenge. But the Court is constrained in its decisions by the laws on the books. It is time to dust off and refresh our patent laws.”

    As is the case with Sections 100 and 101, Sections 102, 103 and 112 likewise receive scant attention. Sections 102, 103 and 112 in large measure (in conjunction with 101) are the yardsticks by which patentability is determined. If patents are, as the good Senators state, “too easy to get”, then I must wonder why these section, and particularly 103, are left relatively unscathed.

    “In 2003, the Federal Trade Commission reported that patents of questionable validity were inhibiting innovation and competition, harming consumers and businesses and our overall economy. The FTC further found that relying on court battles to challenge questionable patents was unduly costly and cumbersome. To address this problem, our bill would set up an administrative, post-grant review procedure. This would not only cut down on legal costs for the patent holder and the patent challenger, but it would also leave the issue to those best equipped to review patents — the experts at the U.S. Patent and Trademark Office.”

    If patents of “questionable validity” are getting through the system at the USPTO, then I do have to wonder how post-grant challenges processed by the agency that let them through in the first place can in any reasonable measure be viewed as an important part of the solution. Improving the inner workings of the USPTO would surely help, but I see little if any evidence that this is a key goal of the proposed “reform” package, much less a significant component of the legislative package.

    “We must also restore fairness to the rules that govern how courts determine damages when a patent is infringed. The threat of excessive damages is ruthlessly curtailing progress, and the loss of jobs and innovation is directly linked to litigation costs. But we must be careful to strike the right balance so that violating the intellectual property rights of others does not just become an acceptable cost of doing business. The goal of our reforms is to ensure that patent holders will be able to obtain appropriate compensation in case of infringement.”

    But for the occassional headline involving cases such as NTP, I have not witnessed the opening of floodgates resulting in the award of excessive damages. The test has been predicated on “economic damages sustained”, with the somewhat equivalent of punitive damages, treble damages, being available but rarely awarded, and even then only in a few of those cases involving what most would consider extremely egregious conduct. Punitives are commonplace in tort cases, but the counterpart is hardly true in the case of patent litigation.

    “Under today’s rules, patent cases can be brought virtually anywhere in the country. Plaintiffs can “forum shop,” filing their lawsuits in jurisdictions that have virtually no relevance to the underlying case, but everything to do with where the plaintiff stands the best chance of winning the case. Our bill would prevent this gaming of the system by bringing the standards for selecting venues in line with mainstream jurisprudence.”

    While forum shopping does take place, patent law is but a minor subset of venue abuse. Perhaps the good Senators are unaware of what takes place in matters such as “class action” litigation. If forum shopping is an issue, then I would expect it would be addressed in Title 18, and not just Title 35.

    There are other points to be made, but I do have to wonder if the Senators are in fact committed to solving the real problems underlying the securing and enforcing of patent rights, or if instead they are actually pandering to those special interests who seem more concerned with protecting their corporate bottom lines (and who, doubtless coincidentally, are major contributors to their re-election campaigns).

    Sorry Messrs. Leahy and Hatch, but what you have stated in your editorial evidence a clear disconnect with the law, and your bases for advocating reform fall far short of presenting a compelling case for what you call much needed reform. No system is ever set in stone, but if changes are to be made then at the very least those changes should be directed to correcting root causes…with the current statutory construction of 100 – 103 and needed changes to the structure of the USPTO clearly leading the way.

  29. 10

    “The experts at the U.S. Patent and Trademark Office” are waiters who spit on the food.

  30. 9

    If meaningful patent reform was the goal, this bill fails miserably.

    The damages provisions are confusing and unclear, and will require a decade of CAFC case law to settle out; district judges won’t understand it and will just make up their own rules in the meantime, increasing uncertainty and raising the cost of litigation.

    The post-grant review will go unused since most defendants know their best chance of invalidating a patent is in court, and the post-grant procedure would create an estoppel effect.

    The purpos of the venue provision is the same as personal jurisdiction, and the battles fought in Burger King, World-wide Volkswagen, Int’l Shoe etc…. bottom line, if you want to do business on a nation-wide basis, expect to be hailed into court anywhere in the country. If the forum is truly bad, move to dismiss under “forum non”.

    So, if the assignment was to provide meaningful reform, I would grade the bill an “F”.

    Meaningful reform would discourage the grant of obvious patents, encourage the fast publication and issuance of good patents, clearly define the improvement over the art that is provided by the patent, and require one claim broader than all others. Congress should scrap this non-sense, and give the USPTO the explicit authority to enact rules implementing the suggestions made by Hal Milton, in his Patent Preparation Mandated by the Law article, in JPTOS, and posted here: link to dickinsonwright.com

  31. 8

    “…it would also leave the issue to those best equipped to review patents — the experts at the U.S. Patent and Trademark Office.”

    oh, my god.

  32. 7

    Ol’ W opposed this bill.

    First smart thing he’s done in seven years. He must have listened to someone who gave him good advice.

  33. 6

    Not to stray to far from the harmful nature of the pending Meaningful [huh?] Patent Reform, but, do I recall correctly?, that several years ago (under Clinton?) a Bill was passed into law requiring telecommunication companies to reserve 3% (or was it 4%?) of all telecommunication capacity for government wire tapping?, or was that reservation requirement only applicable in large urban communities?

  34. 5

    Dennis,

    I understand your position on the bill, but the selective excerpts from the editorial left out significant portions like:

    “But we must be careful to strike the right balance so that violating the intellectual property rights of others does not just become an acceptable cost of doing business. The goal of our reforms is to ensure that patent holders will be able to obtain appropriate compensation in case of infringement.”

    and

    “so-called inequitable conduct defense would also bring balance to the patent system. This defense is used to assert that the patent in question was obtained improperly and is, therefore, invalid. It is frequently pled, and when it is misused, it needlessly drives up the cost of litigation.”

    If you are going to quote parts of the editorial, why not just reprint the whole thing?

  35. 4

    “If we are to maintain our position at the forefront of the global economy and continue to lead the world in innovation and production, we need an efficient and streamlined patent system that issues high-quality patents while limiting wheel spinning and counterproductive litigation.”

    Or better stated, ‘If Microsoft is to continue reporting record profits…’. Whatever happened to the old addage “if it ain’t broke, don’t fix it”?

  36. 3

    written by the same folks who want telecomms immunity for warrantless wiretapping? quoting the ftc who turns a collective cheek to the patent reform act proponents … apropos … (and gas was 27 cents! … maybe that is a better story for the wash times — gas prices under this administration)

  37. 1

    With all due respect to Senators Leahy and Hatch, S. 1145 (as well as its companion H.R. 1098) does NOT provide meaningful reform of the type needed by the U.S. patent system, but will, instead, weaken that system, give away American innovation (especially that created by the Davids of innovation versus the Goliaths of industry who will take that innovation for free if they can), cost America additional jobs, etc. Calling S. 1145 “reform” is an oxymoron. Most importantly, and as shown by the recent BIO Report, the factual case (as opposed to mere whim, conjecture, opinion, etc., or worse) for this so-called “reform” has not been made, not even close. On balance, the “bad” of S. 1145 far outweighs any “good” so let this rotten ship sink with no survivors.

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