In a counter to the Coalition for Patent Fairness, Pat Choate, Ph.D. has published an analysis of the Patent Reform Act of 2007 for the Manufacturing Policy Project. Entitled, The Patent Reform Act of 2007: Responding to Legitimate Needs or Special Interests? The “Patent Fairness” Issue, Choate responds to the assertions put forth in favor of reform.
Dr. Choate, an economist and author specializing in patent issues and the money politics that now infect our nation’s capitol, uses factual research to examine the arguments in favor of patent “reform” that are being advanced by the Coalition for Patent Fairness, the organization representing Big Tech corporations on the issue.
These bills have three core features:
1. They would change the calculations of damages imposed on patent infringers in a way that will drastically limit the amounts they must pay patent owners;
2. They would create a new post-grant, quasi-judicial review process that will provide infringers new opportunities to challenge patents that have already issued;
3. They would change the rules on venue – where a patent holder can sue an infringer – in a way that will favor infringers over patent owners.
Dr. Choate concludes that rather than trying to alter their business practices to conform to existing U.S. patent laws, these corporations are trying to alter those laws to fit their business model.
See the entire paper here: Patent Reform Act Analysis by Choate
I just read through Pat Choate’s paper. He begins by stating that the patent systems of other nations favor large entities over small inventors and that, because of this, it is increasingly difficult for US companies to get adequate protection abroad. Might we have some evidence please, for these absurd (and non sequitor) assertions?
Then, Choate cites as evidence of the superiority of the US patent system over those of ROW that half of all apps in the USPTO come from outside USA. Exactly half of all apps at the EPO come from outside the European Union, so does that put the EU patent system up there on a par with the US system? Actually, the non-US, first to file patent systems, being tolerant of a bare minimum of disclosure, actually favour nimble, quick-to-file small entities and individual inventors over lumbering bureaucratic, slower to file, large corporations. The US common law adversarial system, from soup to nuts, loads the dice in favour of the deep pockets (no hope for the little guy without a deep pocket riding on his back). Has Pat Choate ever observed the little guy enforcing his/her patent in, say, Germany, or any other civil law patent jurisdiction? The world has changed a lot, not only since Edison was inventing, but also earth-shakingly in the last 5 years, but Pat Choate senses but doesn’t yet understand. For me “Strong IP” means 1) fast revocation of invalid claims and 2) immediate enjoining of infringers of valid claims, after a fast process through to trial in less than a year, and poor prospects of reversal on appeal, and 3) wronged patent owners getting their full legal costs and a full measure of compensatory damages (or lost profits). I look forward with interest to a Choate comparison of “IP strength”, between common law USA and common law England. The administration of patents in the USA is getting further and further behind, despite the valiant efforts of the CAFC and SCOTUS to keep the system afloat. That might be wishful thinking but, sorry to say, no more than Pat Choate displays.
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