Tuesday, March 08, 2011

S.23: Death for Innovation?

Phyllis Schlafly sounds off on S.23 on patent reform. Her post begins:

The Democratic Senate is itching to pass a bill that will mean death for innovation, which is the backbone of American economic growth. Sen. Patrick Leahy's, D-Vt., bill, S. 23, is called patent reform, but it's not reform -- it will kill innovation by litigation.

And, she mentioned post-grant review:

The Senate bill would also institute a European-style post-grant challenge process to invalidate the patent. In Europe, competitors use this process to tie up the patent in expensive administrative legal proceedings, which independent inventors and small businesses can't afford.

IPBiz notes that if "low quality" patents are an issue, then give the resources to the USPTO to conduct better exams. Another inspection step is not what is needed. See Deming.

As to testimony:

Another unfair and biased aspect of the Leahy bill is that not a single practicing inventor or representative of small business was called to testify during five years of Senate hearings on patents.

IPBiz seems to recall the Segway inventor did appear at a Senate hearing. Now, of course, the House hearings were problematic in the bias of those called.

By a quirk of timing, LBE actually viewed some of Kamen's testimony, which was presented on April 25, 2005 before the Senate Subcommittee on Intellectual Property of the Committee on the Judiciary. See Testimony of Dean Kamen. LBE has a faint recollection that there was only one senator in attendance, who later left.

Point 4 of Kamen's testimony before the Senate went directly to the resource issue:

It is my understanding that one reason this examination process is in need of improvement is because funding for the U.S. Patent and Trademark Office has not kept up with the increased number of patent applications being filed. Ending the diversion of patent fees to other parts of the government would certainly help address this underfunding. With the proper funding, I am confident that the Director of the U.S. Patent and Trademark Office, Jonathan Dudas, could find ways to hire, train, retain and reward examiners with the requisite credentials to solve the quality problem at its roots. With state of the art search tools and access to the world's technical literature at their fingertips, along with proper training, supervision and adequate time to do a quality job, many of the real and perceived problems with the patent system should fade away.

Ironically, in 2011, it may be the House that saves the day on innovation. Depends on how the newcomers see this issue.

For a more detailed discussion, see Gary Lauder, Patently Absurd or: How to Go From the World's Best Patent System to Worse-Than-Most in a Single Step , which nevertheless might be corrected as to the text During the six years that the Senate Judiciary Committee deliberated this and held hearings, they did not call any small company inventor or individual inventor.

***Side point
One might contemplate where Jonathan Dudas, UChicago Law '93, ended up.
See Former Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent Office Named President of FIRST


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