Patent Reform 2015

According to The Hill, Patent Reform has been taken off the agenda of the judiciary committee. Senator Leahy is quoted as saying “Because there is not sufficient support behind any comprehensive deal, I am taking the patent bill off the Senate Judiciary Committee agenda.”

With election season now moving into high-gear, the issue is unlikely to be revived this session.

23 thoughts on “Patent Reform 2015

  1. 8

    It is a good thing to go slow on patent legislation, even if one is attempting only to codify existing case law. I give you the example of the codification of law of infringement in §271(a)-(c), which was not intended to change law but has done so inadvertently. See e.g., BMC Resources, and the requirement that knowledge of infringement include knowledge of the patent when infringement historically has been strict liability in the sense that patents fare legal rights and knowledge of the patent was not required for liability.

    Similar distortions occurred with the enactment of §112(f) where, because of the construction clause, means plus function as all but vanished from patents. Then we have separation of the prior statute into separate codifications of §101, and §102, where §282, in listing the defenses in infringement suits, fails to identify §101. Was this an oversight? Then what about §103, that limits its focus to prior art while failing to discuss whether ineligible subject matter under §101 should be considered, this right after the Supreme Court in Funk Brothers v. Kalo had held that a law of nature could not be considered in determining whether the claimed subject matter was an” invention.” As a result, when considering ineligible subject matter, the Supreme Court has had to ask whether enough has been added to the ineligible subject matter – when this really is a consideration under §103. Then certainly back to §102, where because the defenses to infringement were incorporated into the definition of prior art, these defenses, e.g., 102(e)-(g), were unexpectedly construed to be prior art for obviousness purposes, forcing legislation to control the damage.

    Even simple codification, if not done with extreme care, can have major unforeseen consequences.

    1. 8.1

      Ned – B$.

      You are again attempting to portray the 1952 Act as only codification.

      That just is not so.

      Even your hero Frederico said as much concerning 112. That you now attempt to kick said and try to say “B-b-b-but that’s not what Congress really wanted” is reprehensible.

      You need to accept exactly what happened in 1952.

      1. 8.1.1

        Really, anon Re: 112(f) Just look at Application of Fuetterer, 319 F.2d 259 (C.C.P.A. 1963), n.11, “We feel, however, that a considerable body of case law, if not the preponderance thereof, before the Halliburton case interpreted broad statements of structure, e. g., “means,” plus a statement of function in the manner now sanctioned by the statute. ” But they got it wrong.

        Graham v. John Deere, on 103 — codification but for Cuno (flash of genius — see second sentence of 103.)

        But if it was a codification, what happened to Funk Bros. v. Kalo?

        Frederico on moving the defenses in to 102, just a formality. See what happened?

        On 271(a)-(c), intended as a mere codification, section (d) to overrule Mercoid. But see what happened?

        This is not male bovine effluvia. It happened.

        Congress never intended to exclude 101 as a requirement for patentability/validity. That would have been a major change. They were never told that the legislation would have this effect. But that is the way 282 reads, and the way 103 is structured.


          But if it was a codification

          Asked and answered, Ned. In the negative – why then do you keep talking as if it was answered in the positive?

          Pay attention.


            anon, and you do not listen to me. Particular cases were targeted. No one intended to entirely change the law. But that is what happened, across the board.


          Congress never intended to exclude 101 as a requirement for patentability/validity.

          Cite please.

          And keep in mind not to confuse yourself and conflate things as so often seems to be the way of those who want 101 to be changed by the Court.

          Keep in mind that patent eligibility and patentability really are two separate and distinct legal things.


          But they got it wrong.

          Um, who exactly is ‘they?’ Congress, that wrote this law?

          Ned, your fealty to the Royal Nine clearly is revealed in your @$$-backwards view and attempted revisions of history and trying to restore patent law to an era when Congress has allowed the courts to define invention through the tool of common law evolution.

          But your fealty is misplaced.

          Attorneys owe a duty to the constitution. NOT to the Supreme Court.

          You refusal to place your duty where it rightfully belongs results in your continued choice of purposeful ignorance of the law, and blinds you to an impending constitutional crises of separation of powers.

          4 is not 5 – for a D@MM good reason. Open your eyes to the addiction of power in (implicitly) writing law that is now front and center in this country.

    2. 8.2

      The very words of Frederico:

      It is unquestionable that some measure of greater liberality in the use of functional expressions in combination claims is authorized than had been permitted by some court decisions and that decisions such as that in Halliburton Oil Well Cementing Co. v. Walker, 67 S.Ct. 6, 329 U.S. 1, 91 L. Ed. 3 (1946), are modified or rendered obsolete…

      Does that sound even remotely like mere codification?

      1. 8.2.1

        anon, they clearly wanted to limit Halliburton. But they did not want to overturn the entire body of case law regarding functional claiming other than that case. That is what Rich said in Fuetterer. But the law prior to Halliburton is not what they enacted.

        I have explained in detail just why 112 changed the law in substantial way, and why it was entirely unnecessary given intervening Supreme Court case law, Faulkner v. Gibbs.

        So, they clearly got it wrong in attempting a simple overrule of one case.



          You are wrong yet again. You misspell the word “l-i-m-i-t.” The proper spelling is “a-b-r-o-g-a-t-e.”

          law prior to

          (sigh) – there is your mistake – you are STILL searching and attempting to merely codify.

          You need to accept what happened in 1952. Once you do that, much of your confusion and poor understanding of the law will begin to dissipate.

  2. 7

    Well considering that the world is dropping US tech companies’ products, because Congress authorized the NSA to backend into them. Why would Congress want to stifle the only revenue generator remaining to US companies to extract profits from overseas entities: patent infringement lawsuits. Congress will do anything to generate revenue streams to tax.

  3. 5

    With election season now moving into high-gear, the issue is unlikely to be revived this session.

    The likelihood that some patent troll(s) somewhere will hit a new low between now and the election and put the spotlight back on the broken patent system? Very high indeed.

    1. 4.1

      Agreed. In his statement for why he removed S. 1720, Leahy disingenuously asserts that the problem that caused him to remove this bill was “competing companies.” The problem with S. 1720 was a misguided and poorly thought-through bill. He and his fellow Senators (as well as those Congressmen who supported the even more misguided and poorly thought-through Goodlatte HR 3309 bill) need to stop “throwing rocks” at the wrong “houses.”

  4. 1

    I think I mentioned this before to one of the neophytes (6) here. Patent reform doesn’t happen overnight. Election coffers need to be refilled (once, if not twice) and all the lobbyists involved will eventually cause the bill(s) to be watered down.

      1. 1.1.1

        6, when the antipatenters screw up the patent system so badly that few folks apply for patents, the USPTO will need to lay off some examiners. It may matter to you then.



          6, tends not to see, understand or even care about anything except his belief system.

          He makes a wonderful lemming marching up anti-patent hill in that way. Cliff? What cliff? Can’t you see that there is a field of rye on the slope of anti-patent hill and don’t you know that Malcolm-Caulfield will be there to save all the lemmings marching through that field of rye?

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