The breadth of opposition to this legislation [S. 1145] indicates the need for a fuller debate, but Sen. Leahy has tossed his lot with Microsoft, Intel and their allies. His desire to rush the bill through the Senate does a grave disservice to our patent system. The future of American innovation hangs in the balance.
Of the proposed "second window" of oppostion in S. 1145, Jones wrote:
If Congress creates a new, open-ended, post-patent review procedure to challenge the validity of a patent throughout its life, the benefits to patent holders become very uncertain.
Incentives to seek patents are weakened, venture capitalists face higher risks when backing new ideas, and business models that depend on patents are discarded.
Separately, see a posting of IPFrontline which discusses issues with Jaffe and Lerner's idea that the patent system is broken, as well as issues with peer-to-patent.
On issues with the second window, see
Getting the Patent Reform Wars Back on Track
Separately, on June 27, 2007, a letter was sent to Pelosi, Reid, Boehner and
McConnell (signed by a variety of entities, including Phyllis) which raised similar issues to those of the Jones commentary.
Separately, on June 26, 2007, a letter was sent to Leahy and Specter from medical organizations strongly attacking the post-grant opposition component of S.1145. Signers included the Amytrophic Lateral Sclerosis Society and the MDS Foundation.
Separately, the Washington Post discusses text from a debate on patent reform hosted by the Congressional Internet Caucus. Text included:
Another major issue in the bills is a new way of challenging patents after they're issued, called post-grant review. The bills would allow companies sued for patent infringement to file challenges with the U.S. Patent and Trademark Office (USPTO)
The post-grant review would create a continuing question about whether a patent was valid, making it difficult for small companies like AmberWave to get funding, Gallagher said. "If we can't get venture capital, we can't function," he said.
Instead of a new way to challenge patents after they're granted, Congress should focus on giving the USPTO more money, he said. "The way to ensure patent quality is to get it right the first time," he said.
BSA's Simon said worries about a new post-grant review watering down the value of patents are overblown, because there are several ways to challenge patents now. But the USPTO's current patent-challenging mechanisms don't work well, and the most common way of challenging a patent, in a lawsuit, can cost millions of dollars, he said.
"We think administrative challenges are good things," he said. "It saves time, it saves money."
IPBiz is continually amazed that the folks who argue "patent quality" in the patent reform debate are the SAME folks who argue for a product inspection step (post grant review), which is exactly the OPPOSITE of what quality guru Deming taught. If one wants to improve patent quality, strengthen the patent examination step. At the end of the day, the pro-post grant review folks constitute "a house divided against itself." One can't be pro-quality and argue for a step which is anti-quality.