Sunday, April 01, 2007

Patent reform: deciding a complex issue

On March 30, Harold Wegner posted on IPFrontline some remarks of Chief Judge Michel on patent issues. Wegner's first point: The Chief Judge asked the bar for greater participation by amici to help the Federal Circuit resolve important controversies. Wegner noted: However, under the current regulations of the court it remains impossible to meet the “seven day rule.” IPBiz notes perhaps difficult if you wait until the party's deadline before you decide to file. Also, note Justice Stevens in oral argument in Festo noted that most amici briefs in Festo were not read.

There is more discussion of the March 29 symposium “Ethical Issues in Patent Law” held at the Columbus School of Law, Catholic University, in Washington, DC at the ip-watch website.

Jonathan Band was quoted: There are too many vested interests who want the [obviousness]standard to stay the way it is.” Looking at the amicus briefs in KSR v. Teleflex, one might argue that many "vested interests" are urging change in the obviousness standard. Recall also the Professor Mark Lemley changed sides, now supporting the current standard.

Of CJ Michel, ip-watch wrote: Paul Michel, chief judge of the US Court of Appeals for the Federal Circuit, asked that patent claims be more clearly stated while acknowledging that claims are sometimes kept deliberately ambiguous so as to stretch the scope of claims as far as possible. “It should hardly come as a surprise, then, that there develop disagreements in interpretation,” Michel said.

ip-watch also wrote: But while panellists indicated frustration and even resignation, they never expressed defeat. Noting that there was “patent reform talk in the air,” Judge Michel said that there was a role for “all lawyers to participate in all possible ways in the emerging public dialogue, because a lot of things can go wrong in Congress with unintended consequences. Congress needs a diverse set of viewpoints. It almost cannot get too much help, and it’s going to need it soon, from what I hear within the next year and a half.”

The lead story on Sunday Morning on April 1, 2007 concerned vaccines. Lurking in the background was the recent debate in Texas over human papilloma virus. However, the lead in was to one family, the Tremblays, whose child may have beome autistic through a measles shot (this is part of the mercury additive business). The following counterpoint was discussion with Dr. James Dale, who is working on an anti-strep vaccine. There was background on the history of vaccines, with mention of Cotton Mather introducing the concept (as to smallpox)in the US in 1721 based on prior knowledge in China and in India. One notes there is discussion of the smallpox issue in Roberts' novel, Arundel. The Sunday Morning piece indicated that there would be winners and losers in the process, and finding the right answer was not necessarily obvious.

Returning to the patent reform debate, one hopes, as Professor Chisum advocated, that neutral principles of reform will be adopted. Reform should be based on accurate evidence, and reliance on inflated numbers for patent grant rate should be avoided.

***As a footnote related to the IPFrontline text There has been much discussion in academic circles about the failure of the court to consider law review articles in their deliberations.

Within footnote 41 of the second Quillen paper (12 Fed. Cir. B.J. 35) there is text: Numerous authors have addressed the problem of USPTO quality. referencing among other papers Harold C. Wegner, Enronesque Patent Bookkeeping: Two-For-One Continuation Double Counting and American Patent Flooding (June 14, 2002) (unpublished manuscript, on file with author at Foley & Lardner).

IPBiz would love to see that unpublished manuscript become publicly available.


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