Thursday, April 19, 2007

Press coverage of patent reform bill of 2007

The Washington Post portrayed current efforts in patent reform as a battle between IT and pharma: Two of the country's leading industries, computer technology and drug manufacturing, are battling over an effort by Congress to overhaul the way inventors profit from ideas, with executives on both sides saying billions of dollars are at stake.

The Post did not discuss the "big guy" vs. "little guy" aspect. Thus, when the Post quoted Orrin Hatch: "This bill institutes a robust post-grant review process so that third parties can challenge suspect patents in an administrative process, rather than through costly litigation," the Post neglected to mention that this would discriminate AGAINST "little guy" patentees, who don't have the money to defend against "administrative actions" which would cost in the $100,000 range.

The Post brought up the recent Alcatel/Lucent v. Microsoft matter: In February, a federal jury ordered Microsoft to pay $1.52 billion to Alcatel-Lucent for infringing two patents for the MP3 technology used to play digital music on computers, portable players and other mobile devices. Although this case involved a "big guy" plaintiff and a "big guy" defendant, the Post suggested that IT companies were typically defendants: The drug and tech sectors, which rarely square off against each other in court, tend to play different roles in patent cases. Pharmaceutical companies are usually plaintiffs, while tech companies are more often defendants, and that difference explains their clashing views over the patent system.

The Post article had a flavor of Jaffe/Lerner's "patent system as sand in wheels of innovation": Emery Simon, counsel to the Business Software Alliance, said the traditional justification for patents is that inventors get a limited monopoly over their technology in return for the public receiving new knowledge and products. ''That balance has been tipped,'' he said, arguing that patent law now discourages innovators.

The Post got into possible partisan, Democrat vs. Republican, issues:

Since 2000, drug manufacturers have given $61.5 million to political candidates, with more than three-quarters going to Republicans, according to figures compiled by the Center for Responsive Politics. Of the 15 most generous industries, only oil and gas and general contracting gave a higher proportion of their money to Republicans. By contrast, computer and Internet companies played both sides. Of the $112.6 million donated since 2000, each party received almost exactly half.

Again, this misses the "big guy" vs. "little guy" angle in patent reform. The big guys, who have the resources to file many patent applications and to indulge in post-grant interferences, will be "all right" with first to file and with post-grant interferences. Even the patent interference bar, which would lose its reason for being with first to file, is looking forward to better prospects with lots of business in post-grant opposition.

Bloomberg made the link between the IT industry and the proposed legislation clearer:
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.

Bloomberg also noted: Some changes are pushed by technology companies that say they are too often accused of infringing patents of questionable validity. The patent office would get new power to review patents after they are issued.


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