Friday, September 21, 2007

The unintended consequences of HR 1908 are harmful to innovation

Frank Davies of the San Jose Mercury News covered the recent efforts of Innovation Alliance against the unintended, bad consequences of HR 1908.

Dean Kamen was quoted: "You don't shut down the national pastime of baseball because some players are using steroids. You can go after 'trolls' and other bad actors without unintended consequences that are harmful."

The mechanism of post-grant review within HR 1908 was challenged:

The inventors and CEOs from more than a dozen companies said they object to a provision in the House bill that would allow companies to challenge patents after they are awarded in a new administrative review process.

"This would lead to less certainty, further delay in securing a valid patent, and expose emerging companies to meritless or commercially motivated challenges by deep-pocketed rivals," the Innovation Alliance, a coalition of groups opposing elements of the bill, said in its analysis.

See also Post-Grant Opposition: a Bad Idea

The lack of preparedness among some in Congress was mentioned:

"Two days before the House vote, I was at a meeting with 20 to 30 staffers who were trying to learn this stuff in one day," said Bruce Bernstein, chief intellectual property officer for InterDigital, which makes wireless systems. "My concern is that we're going to get something jammed down people's throats."

IPBiz notes that many staffers get their viewpoints from Jaffe and Lerner's Innovation and Its Discontents, which is probably NOT a good idea:

Getting the Patent Reform Wars on Track


The post-grant review procedure proposed in HR 1908 ("a provision in the House bill that would allow companies to challenge patents") is predicated on an undemonstrated assertion of a pervasive "lack of quality" in issued U.S. patents. When the National Academy of Sciences (NAS/STEP) investigated this assertion, they stated at page 3 of their report: "The claim that quality has deteriorated in a broad and systematic way could be, but has not been, empirically tested. Therefore, conclusions must remain tentative." Congress should not be acting on "tentative conclusions." In fact, when more detailed analysis of the "lack of quality" conjecture was undertaken, the conjecture was found wanting.

See the following articles available on IPFrontline:

Getting the Patent Reform Wars on Track
Patent Grant Rate Lower Than Many Academics Think

Lawrence B. Ebert
author of On Patent Quality and Patent Reform
Bridgewater, New Jersey
September 21, 2007


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