One troubling aspect of this reform is that some of the more important proposals -- such as adding a far simpler procedure for competitors to challenge and invalidate all patents at any time -- are quite harmful to innovation in the long term. Although clearing out a few "bad" patents is a laudable goal, undermining the certainty and validity of all patents is detrimental to society.
In Getting the Patent Reform Wars Back on Track, LBE had written:
One thing we don't need is so-called patent reform that makes matters worse. The creation of a post-grant opposition system is such a proposal. By allowing a second window of opposition to occur at any time in the patent's lifetime, this proposal enhances uncertainty, which is simply bad for business. Separately, an opposition system unfairly burdens patentees with the expense of continually having to defend patents. This is not a desirable reform.
Van Dyke got into the new rules on continuing applications:
For example, severe restrictions on the number of follow-up continuation patent applications will adversely affect innovative efforts in the life sciences sector. Further, the retroactive nature of these measures undercuts the entire pipeline of nearly 1 million pending patent applications, making all patentees, small or large, subject to new procedures with prohibitively expensive consequences.
For all patentees, the far-reaching nature of those changes has been likened to the killing of the American goose laying the golden eggs of ideas. Indeed, the traditional American dream of reward for building a better mousetrap is compromised. Various documents have been filed in support of Glaxo's opposition to the rules changes, and a hearing is scheduled for Oct. 31, 2007, the day before what many are calling "Black Thursday," the date of rules imposition.
Back on April 20, 2006, LBE had sent comments to the USPTO on the new rules. The very first paragraph mentioned the possibility of a legal challenge to the rules. LBE sent in a second comment on the rules.
There should be a bumper sticker: don't blame me, I submitted comments in 2006.
Or, remember the lyrics from the P.F. Sloan song:
Where were you when I needed you?
[For those who might not remember, P.F. Sloan was sixteen and a genuine street poet, when he wrote the lyrics for "Eve of Destruction."]
PatentHawk had the following comment related to an NLJ article by Carlson criticizing the proposal of patent oppositions:
Have to agree with Carlson. There are special reasons why the EPO opposition system is so stable and successful. For nearly 30 years now, roughly 5% of patents issuing from the EPO are opposed, and 70% of all such oppositions are filed by Germans, for whom opposition has always been a standard business tool that one needs to use, in defence against the mischiefs of the German "twin track" patent litigation system (which Japan used to have but has now wisely got rid of). What's interesting is the extent to which litigation-savvy Americans can use the EPO opposition track (which is running faster these days)at nominal cost to diminish the threat of a particular US patent. EPO-style civil law opposition will anyway never work in common law USA.
LBE cited the work of Dale L. Carlson and Robert A. Migliorini, 88 J. Pat. & Trademark Off. Soc'y [JPTOS] 101, February 2006 within Intellectual Property Today.
Separately, in some sense, Americans can "free ride" on the European opposition system. If the European counterpart gets trashed in opposition, things don't look good for the US version.