Friday, February 22, 2008

Patent reform: falling victim to political deal-making?

Jeff Wild writes at IAM Magazine:

I am told that there are talks going on between Leahy’s office and the White House and that we could see some kind of deal emerging along the lines of: “You give us what we want and we will give you the Patent Reform Act.”

My guess is that at this stage, such a deal is the only hope the Act has of making it through. What for so long seemed a shoe-in is now close to falling by the way side. It will take some good old fashioned political deal-making to resurrect it now. With the Administration basically in a no lose situation because it never has to face the electorate again, it could all depend on just how far Senator Leahy – who gets quite a lot of funding from the electronics industry (as well as lawyers and lobbyists, whatever that actually means) - is prepared to deal to get the legislation through.

Note text within a previous IPBiz post:

Members of the House and Senate, supported by technology companies including Microsoft Corp. and Intel Corp., introduced legislation that would make the biggest changes to US patent law in 50 years. Of Leahy, who recently benefitted by a Cisco hosted fundraiser: Current patent law was "crafted . . . when smokestacks rather than microchips were the emblems of industry," said Senator Patrick Leahy, a Vermont Democrat.

See also

Here's what Bernard G. Frieder wrote in the Jerusalem Post on February 20:

But the changes in US patent law now under consideration by Congress would drastically weaken current protections. This is deeply problematic for Israeli start-ups and suppliers of venture capital, who rely on the US patent system.

THE PROPOSED changes would greatly increase the costs of securing a basic US patent and expand filing requirements and processing time, thereby reducing a patent's term of protection.

Also, a US patent would no longer be a secure asset since its validity could be challenged during the course of its effective life. There would be no closure. The potential for costly litigation would skyrocket and patent holders would be forced to "lawyer up" - to defend themselves against opportunistic plaintiffs.

Challenges could even be initiated by third parties and competitors from anywhere in the world so long as they employed the right lawyers.
Moreover, grounds for initiating and achieving a successful challenge would be significantly broadened. An established patent could be overturned on a technicality - even if the error was non-intentional and non-material to the issuing of that patent.

mediligence notes:

The biggest concern I have, as I begin to preliminarily review this, is that the general thrust of the reform, while focusing on resolving specific deficiencies, has the definite potential to squeeze innovation. For example, the switch from “first to invent” to “first to file” will give a distinct advantage to those inventors who have well-oiled patent filing capabilities. Viewed simply (sometimes this is how one must do things), an inventor comes first, then the apparatus to file patents, pursue venture capital, hire management, etc. So, the “first to file” change has implicitly deemphasized the value of the inventor. Am I missing something?

Admittedly, I have an inherent bias toward small startup medtech innovators. I simply believe that they are the source of an enormous number of ideas. To restrict them in any way will do harm to medtech development. And forcing inventors to file first and invent later not only puts the cart before the horse, but also requires the inventor to dilute his/her focus on inventing as the singlemost important activity.

Meanwhile, ZDNet talks about a consensus, reminding one of the bogus story planted by the Coalition for Patent Fairness about the universities being happy with the bill:

First, Senate Judiciary Chairman Patrick Leahy tapped out a column in The Washington Times, alongside his Republican counterpart, Orrin Hatch.

Their column shows that consensus seems to have emerged on some important patent issues, namely an end to forum shopping and the question of a review procedure to make sure bogus patents don’t clog the courts.

To ZDNet, a consensus among which people?


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