Friday, February 22, 2008

Patent reform. Leahy/Hatch credibility on the line.

CNNMoney notes of patent reform:

There are four major areas of disagreement between the industry groups.

These include changing how damages are awarded in patent infringement cases, the ability to challenge a patent's legitimacy, penalties for those who provide inaccurate or false information to the U.S. Patent and Trademark office and limiting the jurisdictions where patent challenges can be made.

Those familiar with the negotiations say that substantial progress has been made on all the disputed parts of the bill but damages for patent infringement, the most contentious remaining issue.

"The most difficult issue to try and get resolution on is damages," said Gary Griswold, chairman of the Coalition for 21st Century Patent Reform. "We are concerned there will be a reduction in the size of damages that can be awarded."

The story begins:

A renewed push by two veteran U.S. senators [Leahy, Hatch] could revive legislation aimed at overhauling the U.S. patent system, months after some had given the bill up for dead.

PointOfLaw writes:

The next few weeks will be critical to the legislation, which the House passed in September. Although much of the discussion has focused on the different perspectives and concerns that the high tech and the biotech/pharma industries have about the legislation, the fact remains that the patent litigation system is broken. Congress should make every effort to fix it by writing into this legislation reasonable formulas for damage awards and venue rules that discourage forum-shopping. ...

Not a word about post-grant review [opposition].

CNET merely presented irrational raving:

The sooner we have a valid system for awarding patents, the better. As it stands right now all a person has to do to get a patent is to file the patent application and pay the fees. The patent will be granted without any scrutiny.

A patent should be almost impossible to obtain. Only the most novel ideas deserve patent protection. Obvious, trivial, and incremental ideas should be discarded from patent consideration.

IPBiz notes that the CNET post seems to suffer from belief in the Quillen/Webster (alleged) grant rate of 97%. The current grant rate is slightly over 50%. [54% in fiscal 2006] See also Patently-O.

Of the grant rate matter, IPBiz notes text attributed to Hal Wegner:

While empiricists quibble over whether the U.S. allowance rate is somewhere near 70 % or even higher than 90 %, it is clear that in any event the American system with its wide variety of quality and training and other factors is letting out far, far too many patents of questionable merit.


Statutory Reform – Focus on the Key Issue, the Post-Grant "Second Window": Manifestly, the single most pressing need for patent reformthat dwarfs everything else is establishment of an efficient, tight inter partes post-grant review under a "second window" system to permit a challenge at any time in the life of the patent.

Unless and until this reform takes place the patent community is whistling in the dark about patent reform.

Looking back a little, one notes:

For example, within an article titled PANEL I: KSR V. TELEFLEX: THE NONOBVIOUSNESS REQUIREMENT OF PATENTABILITY (17 Fordham Intell. Prop. Media & Ent. L. J. 875 (2007)), Professor John R. Thomas states:

As you know, right now the U.S. Patent Office claims a roughly seventy percent grant rate. [FN80] But, in fact, that is an Enron-style accounting statistic, because what that really counts is the number of final rejections that come out every year.

Hmm, where did the symbolism of Enron come from?

If one looks at the second paper of Quillen and Webster (wherein the 97% grant figure is "qualified", 12 Fed. Cir. B.J. 35) there is text:

Numerous authors have addressed the problem of USPTO quality. referencing among other papers Harold C. Wegner, Enronesque Patent Bookkeeping: Two-For-One Continuation Double Counting and American Patent Flooding (June 14, 2002) (unpublished manuscript, on file with author at Foley & Lardner).

This paper, seemingly existing only in a footnote of Quillen and Webster, otherwise lives a Sikahema existence, apart from the "reference by imagery" of John R. Thomas.


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