Thursday, December 18, 2014

"Patent Reform that only China Would Want": right conclusion; wrong arguments

One finds in the post Congress is Pushing Patent Reform That Only China Would Want , the text

Patent reform is seen as legislative low-hanging fruit that can be resurrected to rise above our partisan squabbling.

The law now known as AIA passed the House with significant votes from both Democrata and Republicans, and is hardly emblematic of "partisan squabbling."

From IPBiz in 2008

What may have started as some academic thoughts from Cecil Quillen, later pushed by Mark Lemley (and others), ended up being mainlined to foster the economic interests of those in the "Coalition for Patent Fairness." Chisum got it right in his law review article. As the vote in the House on HR 1908 illustrated, patent reform (at least this version) is NOT a Democrat/Republican issue. In New Jersey, Rush Holt voted AGAINST 1908 and Chris Smith voted for it; go figure.


House passes H.R. 1908 225 [220]-175 on Sept. 7, 2007

Although PCMag had reported the vote as 225-175, the actual vote was 220-175.
A detailed breakdown of how each Congressman voted may be found at GovTrack.US.

The Democrats voted 160-58 in favor and the Republicans voted 60-117 against. One notes that some GOP IP heavyweights voted in favor of HR 1908, including Coble and Sensenbrenner. Within New Jersey, Republican Chris Smith voted in favor of HR 1908 (?!).

**Elsewhere in the "China" article

Carly Fiorina, a former chairman of Hewlett Packard who understands the importance of patents as well as anyone, has warned against the current push for overhauling the patent system. She notes that the proposed new rules would put patent holders at a greater disadvantage in court, and they would thus have a harder time preventing others from misappropriating their inventions and that the legislation would help big and powerful corporations at the expense of individual inventors and small companies.

Of Fiorina's tenure at HP, wikipedia notes

In early January 2005, the Hewlett-Packard board of directors discussed with Fiorina a list of issues that the board had regarding the company's performance.[43] The board proposed a plan to shift her authority to HP division heads, which Fiorina resisted.[44] A week after the meeting, the confidential plan was leaked to the Wall Street Journal.[45] Less than a month later, the board brought back Tom Perkins and forced Fiorina to resign as chairman and chief executive officer of the company.[46] The company's stock jumped on news of Fiorina's departure.[47] Under the company's agreement with Fiorina, which was characterized as a golden parachute by some[by whom?], she was paid slightly more than $20 million in severance.[48]

Judgments on Fiorina's tenure at HP are mixed. In 2008, Infoworld grouped her with a list of products and ideas as flops, declaring her to be the "anti-Steve Jobs" for reversing the goodwill of American engineers and for alienating existing customers.

Prior to joining HP in 1999, Fiorina was at Lucent. The case -- Lucent Technologies, Inc. v. Gateway,Inc. --, concerning a patent filed by Lucent in 1994, was not exactly a model of Lucent understanding patents.

See 8 JMRIPL 80, 88 (2008)

So author Erik Telford may have reached the right conclusion, but might want to present better analysis. There is no evidence that patent reform is a party-line issue
[recall Democrat Harry Reid deep-sixed the last big effort]. There is no evidence that Carly Fiorina understands the importance of patents as well as anyone.


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