Wednesday, April 30, 2008

NY Times on patent reform, inequitable conduct

Within a New York Times article titled Patent Law Battle a Boon to Lobbyists, one finds the recent argument by Jon Dudas:

Jon W. Dudas, the under secretary of commerce for intellectual property, said: “We are getting more and more unpatentable ideas, worse and worse quality applications. Historically, in the last 40 years, the allowance rate — the percentage of applications ultimately approved — hovered around 62 percent to 72 percent. It went up to 72 percent in 2000, but dropped to 43 percent in the first quarter of this year.”

Of various discussions involving Mike at TechDirt, one notes that the Dudas statement is based on the low allowance rate of the first quarter of 2008. There was a high allowance rate in 2000, which was all right for Dudas, but not all right for Jaffe and Lerner. The Dudas position is that bad applications have always been rejected, but that is not at all what Jaffe and Lerner said. What Jaffe and Lerner said does NOT presage the comments of Dudas, which are based on a phenomenon of first quarter 2008 (and which may have been "artificially" created by the USPTO).

The Times piece by ROBERT PEAR, although titled about lobbyists, begins:

A fight has erupted in Congress over the question of whether drug makers and other companies should be allowed to keep patents they obtained by misrepresentation or cheating.

Although patent reform involved issues about inequitable conduct, the major point of contention was apportionment of damages. The article by Pear got to damages in the 24th paragraph [!]. It did at least get to lobbyists in paragraph 3:

The legislation, affecting a wide swath of the American economy, has been a boon to lobbyists. In 15 months, two dueling business coalitions have spent $4.3 million lobbying on the legislation, which calls for the biggest changes in United States patent law in more than 50 years. Companies from almost every major industry have joined the battle.

Pear gave dollar numbers suggesting the Coalition for Patent Fairness outspent the 21st Century Patent Reform, $2.5 million to $1.8 million. IPBiz notes that the Coalition for Patent Fairness was very effective in its manipulation of the news surrounding various Congressional hearings.


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