Sunday, February 08, 2009

Rooklidge's "Reform of a Fast-Moving Target"

A paper written by William C. Rooklidge on patent reform was presented at meetings of the AIPLA and ACPC, and is getting some press.

"Reform of a Fast-Moving Target: The Development of Patent Law Since the 2004 National Academies Report" examines the major issues and changes that have occurred in the patent system since the NAS report in 2004. While acknowledging that some have questioned the ability of courts to address the most contentious issues, Mr. Rooklidge concludes that the pace of change in the patent law suggests otherwise:

“In fact, the patent law changes that have occurred since 2004 suggest that the courts—not the legislature—should be entrusted with many of the patent reform topics that have been considered. Side benefits of this division of labor likely include that a legislative package stripped of the contentious issues more suitable to resolution by the courts that might well find agreement, or at least enough agreement to be enacted.”

A copy of the paper is available.

The paper (with co-author Alyson Barker) begins:

Adam Smith attributed history’s greatest improvement in production to the
division of labor.2 By dividing labor among those with specialized skills, he
explained, “Each individual becomes more expert in his own peculiar branch,
more work is done upon the whole, and the quantity of science is considerably
increased by it.”3 Today, “this division of labor refers not only to the breakdown
of jobs in a manufacturing plant or on an assembly line,” but “includes the labor
of those who choose a field, acquire education or training, gain experience, and
develop their abilities within a complex meritocracy.”4 Perhaps nowhere has the
specialization occasioned by the division of labor become as refined as in the
legal field, and the prime example of that specialization is patent law.

Footnote 8:
LAWYERS PUT INNOVATION AT RISK 27 (2008). Bessen et al. cast the patent bar and the
pharmaceutical industry as the two “entrenched interests who have the most to gain from patents.”
Id. at 257.

The paper is 59 pages long, with 299 footnotes (the last being: Ron D. Katznelson, The Perfect Storm of Patent Reform?, /rkatznelson/54/ (November 7, 2008)). Not appearing among the 299 footnotes is Chisum's
Reforming Patent Law Reform, 4 J. Marshall Rev. Intell. Prop. L. 336 (2005), which effectively provided an
excellent forecast of what happened between 2005 and 2009.

S.1145 stumbled over apportionment of damages. That's the issue. The other stuff was
window-dressing. Yes, the courts changed some things. But the real issue remains.

See also

If you were wondering, the ACPC meeting was at the El Conquistador Resort, Fajarda, Puerto Rico and
Rooklidge's talk was as follows:

Reform of a Fast-moving Target: The Development of Patent Law Since
the 2004 NAS Report

Presenter and Moderator: Bill Rooklidge, Howrey
Panel: Judge Kimberly Moore, CAFC, Judge T. John Ward, ED Texas, Chip
Lutton, Apple, Steve Miller, P&G, and Herb Wamsley, IPO

***In passing, note Alyson Barker won an award from the AIPLA in 2005
and is pictured with Bill Rooklidge in 2005.


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