Latest round of patent reform free-for-all

The latest attempt at legislative reform of US patent law hit the internet yesterday, this time in the form of a proposal that supposedly has bicameral, bipartisan support.

I’ll be honest: I don’t really have the time right now to go through the entire piece of proposed legislation and figure out what it all means.  However, I’m happy to share what others are saying:

  • Patent Baristas has a quick summary of what’s included in the bill.
  • Anticipate This!™ has a quick summary of links to other people’s coverage.
  • Patent Baristas also has a good post describing some of the first reactions from various interest groups.

Finally, Promote the Progress has a quick “from-the-hip” analysis that is probably typical of practitioners who have been down this patent reform road before:

As a whole, the bill is largely ho-hum. Same stuff, different session. The tone is similar to that of the 110th Congress – this bill is a starting point and is intended to get the discussion off the ground, again. Where it goes from here is anybody’s guess.

One substantive comment: first-to-file seems almost certain to happen sooner or later, since we’re pretty much the only country that isn’t using it.  However, I’ll be sad to see first-to-invent go.  Yes, it leads to horrifically complicated fights that only a handful of practitioners even know how to navigate.  However, first-to-invent is fair.  If you invented something first, why should someone else get to patent it just because they got to the PTO before you did?  Bah.

While I’m not going to wade into further analysis at this point, I have a meta comment.  It seems impossible to find an unbiased opinion on patent reform, and all of the biases are so mundane.  Prosecutors want patents to be easy to obtain and to have as many strategic options available to them as possible.  Plaintiff’s litigators want scope to be as broad as possible and damages to be as high as possible.  Defendant’s litigators want scope to be as narrow as possible and damages to be low as possible.  Most “patent reform” groups would probably love to see patents disappear altogether, but will settle for them being impossible to obtain, uselessly narrow, easy to invalidate, and practically unenforceable.

I guess the meta comment is that almost all patent reform commentary centers around concrete effects that show there are things wrong with the patent system, and then suggests ways to eliminate those effects (if those effects conflict with the commentator’s biased viewpoint).  You hardly ever see commentary asserting that there are concrete effects that show there are things wrong with the patent system, and here’s how we can better serve the purpose of the patent system by either eliminating, changing, or enhancing those concrete effects.

Maybe that’s because the purpose of the patent system is different depending on your bias?  Most likely.  But it’d be nice to see some commentary that took seriously “[promoting] the progress of science and useful arts” as the true goal of the patent system, and looking at reform solely through that lens.


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