Patent Reform 2011: House Bill Coming to the Senate in September

[Update 8/3/2011] In the immediate wake of the debt crisis “solution.” President Obama talked about the next steps for Congress.  High on his agenda: Patent Reform:

Through patent reform, we can cut the red tape that stops too many inventors and entrepreneurs from quickly turning new ideas into thriving businesses — which holds our whole economy back.

Senate Majority Leader Harry Reid then announced that the patent reform bill will be the first item taken up for consideration when the Senate returns from recess. 

Parallel patent reform Bills have already passed the House and the Senate.  The Bills have a number of differences. 

Senate democrates have filed a cloture motion to end debate on patent reform and take an immediate vote on H.R. 1249 in toto once the Senate returns from vacation in early September.  Under this scenario, the legislation would not need to return to the House for any further consideration.

41 thoughts on “Patent Reform 2011: House Bill Coming to the Senate in September

  1. 41

    It’s nothing short of revolutionary that our President continues to consistently mention patents and patent law in his public addresses. He still has his hands full in trying to right our capsized economy, but at least he “gets it” when it comes to the importance of IP to our economic health and cultural legacy. Though some provisions of the pending patent reform greatly underwhelm me, I have little doubt that the measures ending fee diversion and instituting USPTO fee-setting authority will make no end of difference.

  2. 40

    the main purpose of this bill is international harmonisation

    Funny then, that the First Inventor To File absolutely FAILS in this regard.

    t does cut a little red tape, but not much

    Funny then, that this too is a massive FAIL, given the level, numbers, and complexity of post grant review and other hurdles to have an effective patent (that is what we are aiming ofr isn’t it?)

  3. 39

    Top spellers only matter in spelling bees. Inventors use an entirely different area of the brain and are of critical national importance.Some say they have more important things to do than worry about spelling.Some people that are not to brite think that that is the way to judge an inventing capibility that is probably you.

  4. 38

    The big problem with this legislation is there leaving the top concievers at the starting gate…

    Not to mention the top spellers.

  5. 37

    Cutting through the details, the main purpose of this bill is international harmonisation, which I am in favour of. This has been a long time coming, we have been waiting for it for several decades. There are a lot of detractors, but I think all that will go away over time.

    It does cut a little red tape, but not much. And of course, a lot of other detailed changes have been grafted onto it.

    No, it doesn’t do what Obama thinks, but he probably hasn’t read it, and doubtless has no real knowledge of the status quo ante either. In this he isn’t alone. I’m sure most people, maybe even most law professors, have only a hazy conception of patent law. As someone who taught constitutional law (him, not me, I’m a patent agent, LOL) I doubt if he ever got beyond article 1, section 8, clause 8, of the constitution when discussing patents.

    Of course, some here think that clause makes the bill unconstitutional. I think that’s bunk. How’s that for a reasoned argument, not!

  6. 35

    You folks might find this HuffPo article [Aug04.11] by Zach Carter interesting. It sorts out who the players are, the lobbyists, the issues, and the flow of money into the pockets of the key players.

    As always, Schummer comes across as the dooshbag he is. Must be something genetic going on there, but at least the guy is consistent.

    It’s a pretty scary thing when one industry is so blatantly given special treatment by Congress. Shouda’ become a banker.

    link to

  7. 34

    The only place the term abandoned should apply is in the instance of the worthlessness of the invention If the inventor still considers it valuable but unable to proceed it should be classified inactive.

  8. 33

    The question is what constitutes abandonment. The inability to financially progress with even the application doesent constitute abandonment because the inventor wants to proceed but cant therefor it is theft in the case of valuable inventions when another invention developer takes over.The rights of the conciever must be maintained for 20 years or the individules will wait out the inventor to cut him out of the deal destroying the incentive to further create. Definately not in the best intrests of society and by excluding the conciever they are not recieving additional conceptions to perfect development.

  9. 32

    Story in an earlier circuit court case opined that the first inventor’s right to a patent vest upon invention under the constitution and laws.

    Cite please – considering that you have already provided cites that state that Marshall held that the right to patent does not vest upon invention (the whole “inchoate” meaning).

    A world of difference between inchoate right and vested right.

    A world.

  10. 31

    We should rermember this is an improved chemical compound and a more economical sub invention of the main invention of the original fuel cell.Its not major conception its a hopefully sucessful experiment although it is a potentially important progression if it works.

  11. 30

    Leo, Pennock did not decide that a second inventor had a right to a patent absent abandonment by a first inventor.   However, Story in an earlier circuit court case opined that the first inventor's right to a patent vest upon invention under the constitution and laws.  This suggests, and strongly suggests, that the founding fathers viewed the first inventor as the only one who had an initial right to a patent, but he could abandon that right.
    Pennock also recognized that there could be more than one inventor.  However, the second inventor's rights depend upon the first inventor abandoning his own.

  12. 29

    Max, under common law, one can lose rights by abandoment of them. That was what was decided in Pennock v. Dialogue.

    But that doesn’t resolve the alleged constitutionality issue, Ned. That tells us why the PTO can deny the patent to the inventor who abandoned his right, but does not explain why it’s OK to give one to a later developer of the technology, if the word “inventor” as used in the Constitution necessarily means “first inventor.”

  13. 28

    No these legislators are puppets of lobbying incumbant big business and likely on the take.The big boys dont care about americas furure only padding there wallets with ill gotten gain wile ignoring their attrocities against concievers of the past. None of them wants perfected inventorship determination by multiple methods and inventor secutity or anything to do with eliminating the 40 other methods that inventors are cheated by this system. If they all arent corrected the theftors pick the weakest link and exploit it destroying the incentive to create and stalling human advancement and economic recovery.

  14. 27

    I guess so, Ned. It seems equitable.

    Me, looking in, and not being an attorney at law either, have difficulty reconciling any notion of “abandonment” under English common law with the “lack of diligence” jurisprudence in interference proceedings. If you look around other areas of US law, for clues to what “abandon” means (perhaps 35 USC 102), is it consistent with “lack of diligence”?

  15. 25

    The big problem with this legislation is there leaving the top concievers at the starting gate or whorse a hole in the ground wile touting the package as the miracle to ignite economic recovery ,twistedly disgusting!

  16. 24

    The question here reguarding independant conception is the astronomical odds against two inventors concieving the invention at the same time.One is the conciever and one is the theftor. So which one gets the patent. Easy the conciever Except under this new system the master inventor isent recognized in invention clusters inventorship determinations of the past.Dilligency was a method before the doctrine of the equivalants that I concieved Its designed to level the playing field between the indegent concievers and multi million doller corperations.Signed the founding father.

  17. 23

    Oboma is finally getting the right idea here however he has the wrong legislation to accomplish it. This present legislation needs to hit the trash can in flames. They wont listen to my worlds top ideas no brag just facts so they need to be outa there as legislators before they can do anymore damages.

  18. 22

    There should be no loss of rights reguarding patents if any conditions exist such as indegency of inventor or else invading startups can steal legally the invention from the rightful inventor.They need an inactive status for dificulties that arise.

  19. 21


    Once more into the breach?

    This time, have you learned your lesson as to what was decided in Pennock – and how it was so decided?

    What was that analogy? A high hurdle race?

  20. 19

    As I understand it, Ned, there have already been any number of denials of patent rights to quite a few “first inventors” already under the First to Invent statutes. There has always had to be a mechanism for deciding between rival invenors, who independently conceive, reduce to practice, and file their patent applications. Did the Founding Fathers include the proviso “but not if he is not diligent” in any solemn promise they made to First inventors? Or did they instead give to the Congress the task of implementing a patent law to reward a general class of inventors as such and to foster the general welfare?

  21. 17

    Can’t we get these people something else to do so they don’t ruin anything else???

  22. 16

    “Cut red tape?”

    H*ll no; among other bad effects coming to a patent office near you, this embarrassment in fact ADDS several rolls of brand new red tape to the patenting process.

  23. 15

    I wonder who, if anyone, will challenge the new law, when enacted, on constitutionality grounds? Who has standing? Do we have to wait until a first inventor is denied a patent?

  24. 14

    Ya wile your at it try to get some money for the original conciever of the fuel cell me without witch the improved version wouldent exist.Non funding to the right inventor is costing jobs by the tens of thousands and sending us into depression.

  25. 13

    I keep hearing cut the backlog cut the backlog yet when you have no funding for startup and other people do, you just say there goes my invention and all your left with is a lawsuit that you cant even afford to file. I am at the point where I say keep the backlog because I cant move without investors get uspto enforcement to collect reasonable royalty percentages or shutdown the stolen idea startups so my patent can have some value when I get the money to pay for isuance.

  26. 12

    There is none and writing the comittee congressmen will get you a not to special place in there spam basket.They wont take my ideas even though there clearly the best in the world.

  27. 11

    In these tough economic times only the the top marketable patents are going to fly. There is no program to identify those and ensue federal and or private funding of them and until there is there is no sence of filing because your lack of funding for legal costs and startup teams coupled with lack of improved inventorship determination methods on this legislation will cheat the inventor or cause his death by disputes with theftors will cause him to be cheating of his invention IP every time.

  28. 9

    “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. 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.

    Please see link to for a different/opposing view on patent reform.
    link to

  29. 8

    If the bill ends fee diversion, the PTO will be able to decrease the backlog, and potentially applicants may obtain a patent more quickly.

    Other than that, nothing in the bill does anything to “cut red tape.” And although I am an Obama supporter, I highly doubt that he has any idea what the bill does substantively.

  30. 7

    How will this impact cheap hydrogen from plain water technology recently announced at the Los Alamos National Laboratory and the Lawrence Berkeley National Laboratory?

    Please contact your Senators and Representatives to ask them how this pending legislation will impact the rights of the innovators of cheap hydrogen from plain water technology.

    link to

    link to

    These noble scientists deserve expedited treatment and special consideration. The too big to fail plan to suppress this technology has gone on long enough. Stop Senator Reid from passing this legislation without getting the detail of this disruptive technology into the disinfectant of USA daylight.

    Don’t let Congress make sweeping changes to patent law before these specific scientists have perfected their interests, rights, and protections.

  31. 6

    I think patent reform would go much more smoothly if we could just somehow trick Congress into believing that this is what the bankers want.

  32. 5

    I believe the President and Congress repeatedly confirm that on a daily basis. Just watch an interview of one of them on any of the news networks (e.g., CNN, Fox News, MSNBC).

  33. 4


    Are you saying that they don’t plan on taking this to Conference?

    Under the House’s version, the PTO does’t keep fees, if I remember correctly. But, I think the FITF with exceptions portion is already the same in both bills.

  34. 3

    The “thriving business” for which red tape is cut is the flow of special interest money into the coffers of select Congressional Representatives.

  35. 2

    thank you for further confirming my view that our president and congress is completely full of s**t.

    someone please point me toward a provision in either bill that helps “cut the red tape that stops too many inventors and entrepreneurs from quickly turning new ideas into thriving businesses”

    what a joke.

  36. 1

    The patent isn’t necessarily the problem, its the legal costs associated with filing a patent and then the expense associated with technology transfer etc. to advance the patent to market.

    Also Phase I & II of SBIR grants just isn’t enough afterwards!

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