Wednesday, December 13, 2006

Leahy talks about patent reform at Georgetown

Further to previous discussion on the Hatch-Leahy Bill (S. 3818), Senator Leahy presented some remarks on patent reform today.

from CNET:

Leahy said he also planned to tackle the hot-button issue of patent reform. He and outgoing intellectual property panel chairman Orrin Hatch, a Utah Republican, co-authored a bill in August that proposed sweeping changes to the system, including measures aimed at keeping patent disputes out of court and litigation costs down.

High-tech companies, some of which have voiced support for the Leahy-Hatch proposal, have levied a hefty list of gripes about the current system in recent years. They say its setup has encouraged a proliferation of bad patents, disproportionately exorbitant settlements in infringement suits, and so-called "patent trolls," who sit on patents in hopes of seeking a lucrative licensing deal from alleged infringers.

"Reforming our patent system will also be an enormous, but critically important, project in the new Congress," said Leahy, who served as the highest-ranking Democrat on an intellectual property panel in the last session and could be in line for its chairmanship next year.

IPBiz notes: same old talk about patent quality and the high grant rate. Bad information dies only slowly.

PatentBaristas talks about a paper by Keith A. Maskus entitled Reforming U.S. Patent Policy Getting the Incentives Right, available here

In the acknowledgements, Josh Lerner is thanked, so one can predict how this report is going to read without going too far, and indeed footnote 6 is to Innovation and its Discontents. Pge 14 has the following sentence: "Patents are of low quality if they are issued to inventions that are obvious, ignore the prior art, or duplicate existing technologies." Duh! Footnote 15 is to a working paper by Bessen and Hunt "An empirical look at software patents," a variant of which has been discussed previously on IPBiz.

The executive summary calls for a return to "basic patenting principles." At page 32, this is called a return to first principles.

Curiously, in the following text, Maskus talks about features of HR 2795, such as first-to-file, which have NEVER been principles of the US patent system. Hardly, a return to the past!

Maskus obliquely talks about fee diversion, stating that the USPTO should be permitted to keep enough of its fees to permit expansion of examination.

Maskus completely gets the law wrong when he talks about a presumption that preliminary injunctions should issue. There has never been such a presumption. Any "presumption about a permanent injunction" (which would take place ONLY after judicial determination of both validity and infringement) was addressed by the Supreme Court in eBay. It's hard to take someone seriously who doesn't get his facts straight.

Maskus cites himself five times, and is thus the most cited author in the paper.


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