Wednesday, January 17, 2007

On comments by LaFrance, Chisum on patent reform

Of the LaFrance review of the book by Jaffe/Lerner on patent reform, Donald Chisum had written in REFORMING PATENT LAW REFORM, 4 J. Marshall Rev. Intell. Prop. L. 336, in 2005, concerning the academic studies on patent reform of the FTC and NAS:

I, for one, was skeptical that these types of studies would give enough
"push" to patent law reform to overcome the inertia. But another "force" has
been added to movement for patent law reform: that of substantial private
interests and companies.
I will single out as an example, Microsoft, the software
giant all of us are so aware of. However, other private sector interests are at work
on patent law reform. Microsoft has run newspaper advertisements espousing
in general terms the need to reform the patent system. n6 Its executives
-- not just legal counsel -- have given speeches in the cause for patent law
reform. n7 If it sounds like I have singled Microsoft out for strong criticism;
that is not my intent. In fact, I am sympathetic toward some of Microsoft's
problems with patent system. My purpose is to use Microsoft's problems with the
patent system and its response as explicative of what we face with patent law
reform. Microsoft is in an interesting position. Historically, it was not much
interested in strong IP protection, perhaps because, as some believe,
it "lifted " much of its technology from others, such as Xerox and Apple. n8 But
certainly today it is heavily dependent on IP protection. Where would Microsoft
be without effective copyright protection for its software, such as the Windows
operating system? Historically, it showed little interest in patents. But just a
year or two ago, it announced that it was adopting an aggressive policy of
patenting its technology and licensing it. n9 It even hired the former chief
licensing executive of IBM. n10 So, Microsoft must favor strong IP protection.
However, the counterpoint is that Microsoft itself becomes a very big target for
patent licensing and infringement claims by others.


So, patent law reform is now serious business, and not just among
patent lawyers and academics, giving the reform movement greater force.

LaFrance had written in her review:

Unfortunately, academics and consumers rarely have the ear of their representatives in the House and Senate, and until there is a groundswell of public support for major reform, the patent system is likely to remain a lucrative tool for corporations and their well-compensated legal counsel.

IPBiz notes that LaFrance's comment misses the significance of Chisum's earlier observation that the real traction for patent reform circa 2005 was the advocacy for certain reforms BY MAJOR CORPORATIONS. These corporations did have the ear of Congress. Chisum was concerned that, given such traction from those with particular special interests, that we work to ensure the adoption of "neutral principles" of patent reform.

HR 2795 failed in 2006 not because reform didn't have the ear of Congress, but because Congress perceived significant disagreement among corporate players in the patent system.

As far as the quality issue went, there was confusion on the part of reformers as to whether the USPTO was doing a poor job examining patents (not applying the law propertly) or whether the courts were applying the "wrong" law (the law as it existed was too patent grant friendly). If one can't deliver a clear message about the origin of the problem, one can't expect a well-defined response.


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