Thursday, February 07, 2008

The negative universe of patent reform

PatentHawk discusses the article by Patti Waldmeir titled When inertia is the better part of valour which article begins

The US Congress seems to operate on the principle that, if you ignore problems for long enough, they will cease to exist. And in the case of US patent reform - which faces a make-or-break vote in the US Senate shortly - they could just about be right.

PatentHawk wrote:

Waldmeir fingered a hyperactive judiciary as the action figure -

[M]uch of the heavy lifting on patent reform has already been done by the courts. While Congress has bickered and blathered, the least democratic branch has done much of the work of the people, stepping in with a series of landmark patent rulings that have undermined the excessive clout wielded by patent holders, with rulings that strip them of the automatic right to shut down their rivals' businesses when they infringe (eBay v MercExchange, 2006) and tighten the standard for proving that an invention deserves patent protection in the first place (KSR v Teleflex, 2007).

IPBiz has discussed some of Waldmeir's earlier clueless commentary, and finds the present similar to the earlier commentary. Thus, "Waldmeir 2008" seems a bit like recycled "Waldmeir 2005" ["Congress may get around to rewriting the patents laws in due course. But in the meantime, the justices appear poised for action."]

IPBiz notes the irony in having a Supreme Court, supposedly dominated by strict-construction non-activist justices, reviewing
a non-precedential decision (KSR) and giving somewhat amorphous advice on the TSM test, which advice has been leaped upon by the BPAI (among others). Meanwhile, one Ted Kennedy, a model for "federal government as expansive goverment," counseled IT and pharma to work things out themselves, and then talk to government. In the realm of patent reform,
identifying the true colors of participants is quite difficult.

Veritably, in the realm of patent reform, it's almost as if we are in some negative universe, in which Ted Kennedy morphs into Barry Goldwater, and Republican-appointed justices look like Hugo Black and William Douglas.

[Recall the statement, attributed to Black to the effect that he had seen only one real invention in his lifetime, that of the Wright Brothers, and he wasn't sure about that one. Note also the revisionist history, popularized by among others Seth Shulman, on the Wright Brothers. ]

Separately, PatentHawk had a post on the meaning of KSR, illuminating the training patent examiners are being given on the application of KSR to the
obviousness inquiry.


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