Wednesday, May 23, 2007

BusinessWeek story on patent reform fails to discuss "second window" of patent opposition

Of the proposed "post grant opposition" (post grant review) in the current patent reform bill (HR 1908), a May 23, 2007 article in BusinessWeek entirely omits discussion of the controversial "second window", in which a patent can be challenged at ANY TIME in the patent's life. This "second window" had previously engendered much controversy in the previous patent reform bill (HR 2795), although you would not know any of this from reading this BusinessWeek article, which includes the text:

The legislation establishes something like a "post-grant opposition system." This means that after a patent has been granted, there will be a short period of time in which someone can challenge it. So if a patent issues, and somebody in your company has been watching for it, they can initiate an opposition action within the patent office to oppose the patent and there will be a mini-trial held in front of the patent administration office to determine the validity of the patent.

BusinessWeek's comment as to the small business owner is like telling a child that "castor oil is good for you":

Well, a small company that monitors the patents coming out in their area of expertise might be able to take advantage of this opposition system immediately instead of waiting to get sued. If a patent issues that looks close to what you're doing, or that might give you problems, you could initiate an opposition to it.

The more likely outcome is that a small entity is FAR MORE LIKELY to be victimized by a patent opposition than to utilize a patent opposition.

Of the "second window", see AND

Post-Grant Opposition: a Bad Idea which included the text:

Since the introduction of H.R. 2795, small-firms around the country have been voicing their opposition to oppositions. Ronald Riley, president of the Professional Inventor's Alliance, has been quoted as saying "I honestly feel that if we don't stop what the big companies are trying to do, there won't be any opportunity for us. What they call patent reform is all about making it virtually impossible to enforce the patents." One commentator has noted that "[p]atents legendarily protect the lone inventor, the pioneering genius in a garage, against the predation of big companies. In reality, the opposite has usually been true." Post-grant oppositions under H.R. 2795 merely provide another tool with which large corporations may unfairly prey on the little guy.

One wonders if BusinessWeek professes to present objective reporting, or merely exists as a lobbying organization?

Of the NAS/STEP report on patent reform, see


of the denial of rehearing in Pfizer, Inc. v. Apotex, Inc., __ F.3d __ (Fed. Cir. 2007)(en banc)(order), panel proceedings, 480 F.3d 1348 (2007)(Michel, C.J.)[Norvasc], see the Wegner article on IPFrontline AND see the previous post on IPBiz interrelating the three dissent opinions to the UPCOMING battle over the Supreme Court's criticism of In re Deuel expressed in KSR v. Teleflex. There is real tension between the Supreme Court's criticism of "incremental innovations" and the manner in which some drug discoveries are made. The dissents of the CAFC are trying to use language in 35 USC 103(a) to cabin the Supreme Court thinking in KSR.


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