Thursday, July 26, 2007

Patent reform as a gift to the IT business?

Stephen Wren has an article in the California Chronicle titled Patent Reform Act Proposal: Real Reform or Gift to Big Business which begins:

All this talk of a need for patent “deform” is but a red herring fabricated by a handful of large tech firms as a diversion away from the real issue...that they have no valid defense against charges they are using other parties' technologies without permission. The objective of these large firms is not to fix the patent system, but to destroy it or pervert it so only they may obtain and defend patents; to make it a sport of kings. Patents are a threat against their market dominance. They would rather use their size alone to secure their market position. Patents of others, especially small entities, jeopardize that. For example, the proposed change to eliminate the use of injunctions would only further encourage blatant infringement. Any large company would merely force you to make them take a license. They would have little to lose. Everything would be litigated to death -if a small entity can come up with the cash to pursue. That's what these large multinationals are betting against. This legislation in regressive, not progressive.

Sadly, some legislators and other parties have been duped by these slick firms and their well greased lawyers, lobbyists (some disguised as trade or public interest groups), and stealth PR firms. Don't be surprised to find the Washington lobbyist scandal spreading into the patent deform proceedings.

Hmmm, IPBiz does recall the warning given by Jaffe and Lerner about lawyers improperly influencing the patent system.

Here's Wren's conclusion:

Even worse; not only is there no need for reform, but the proposed changes will actually damage our functional system. The proposed changes:

1) Increase the costs to small entity patent holders, often by at least an order of magnitude.

2) Shift costs from large corporate infringers to the small entity.

3) Open new causes for large entities to litigate.

4) Open our patent system to a multitude of patent system abuses common in Japan which very much favors big companies.

5) Delay the possibility of start-ups obtaining investment capital by effectively increasing pendency.

6) Increase the power and potential abuse of such power by the USPTO which has become increasingly politicized.

7) Lowers the potential recovery for a patentee by at least one to two orders of magnitude.

8) Will not decrease the role of attorneys or litigation, but rather will increase their role and legal expenses in a multitude of ways. [IPBiz notes the irony of Jaffe and Lerner advocating post-grant opposition, which will indeed INCREASE the role of lawyers in the patent process.]

9) Will lead to much higher filing rates for patents which will further bog down the USPTO.

When corporate America agrees to not use our inventions without consent, American inventors and small entities will agree to stop suing them.


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