Friday, February 15, 2008

Senators Leahy, Hatch not getting the facts right on patent reform

In an editorial in the Washington Post on 15 Feb 08, Senators Leahy and Hatch state:

The Patent Reform Act of 2007 (S.1145) is the product of years of deliberation and study within Congress and by many esteemed agencies and institutions, including dozens of hearings with the testimony of scores of witnesses, extensive and substantive mark-up sessions, and hundreds of meetings and discussions with countless stakeholders representing a sweeping array of interests in the patent system.

The senators mention patent quality:

Recent Supreme Court decisions have nudged things in the right direction, reflecting the growing sense that questionable patents are too easy to get and too hard to challenge.

The senators linked patent quality and opposition via the FTC report:

In 2003, the Federal Trade Commission reported that patents of questionable validity were inhibiting innovation and competition, harming consumers and businesses and our overall economy. The FTC further found that relying on court battles to challenge questionable patents was unduly costly and cumbersome. To address this problem, our bill would set up an administrative, post-grant review procedure. This would not only cut down on legal costs for the patent holder and the patent challenger, but it would also leave the issue to those best equipped to review patents — the experts at the U.S. Patent and Trademark Office.

The senators NEGLECTED to mention that the FTC report relied on the questionable analysis made by Quillen and Webster of patent grant rate. Even Lemley has dropped that one. The senators also neglected to mention that the NAS/STEP report acknowledged there was no empirical evidence to sustain a general assertion of low quality patents. The senators are trapped in time at the year 2004 and should look at some of the investigations of the work they are (mistakenly) relying upon.
Leahy and Hatch should review papers between 2004 and 2008, including the recent work put forth by BIO.

Thus, when the senators write: As legislators, we know we are headed in the right direction when everyone is complaining that the entire bill is not going their way, they should contemplate that some people are complaining because of the lack of a factual predicate underlying some of the arguments.

***See also

Getting the patent reform wars on track

***Also footnote 261 of manuscript


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