Patent Baristas

The Senate’s Committee on the Judiciary, has issued its draft report on the Patent Reform bill (S. 1145), to amend the patent laws currently in Title 35 of the United States Code.

While the last comprehensive patent law reform by Congress was last major revision of the patent laws was the Patent Act of 1952, P.L. 82-593, there is intense pressure under a drumbeat that the U.S. patent system is broken and needs to be fixed.  The growing impetus towards modernizing and improving the patent system has come mainly from the high-tech industry, which feels under fire from too many patent infringement lawsuits.

But, the Supreme Court has also been involved in an ever-increasing number of patent cases while the United States Patent and Trademark Office (USPTO) has tried to enact its own regulatory changes through rulemaking.

Many believe corporations are trying to change the laws to fit their business model instead of trying to fit their business practices to conform to existing U.S. patent laws.  Taken together, the Patent Reform Act, the Supreme Court rulings and the proposed Patent Office rule changes tend to favor the high-tech industry over the biotech and pharmaceutical industries.

(See: Duality: Light and Dark Forces Line Up For and Against Patent Reform)

In S. 1145, the Patent Reform Act of 2007, the numbered sections of the Act do the following:

(1) title the Act the Patent Reform Act of 2007;

(2) change the system to a “first-inventor-to-file” system;

(3) make it simpler for patent applicants to file and prosecute their applications;

(4) codify and clarify the standard for calculating reasonable royalty damage awards, as well as awards for willful infringement;

(5) create a relatively efficient and inexpensive administrative system for resolution of patent validity issues before the USPTO;

(6) establish the Patent Trial and Appeal Board;

(7) provide for eventual publication of all applications and enhance the utility of third parties’ submissions of relevant information regarding filed applications;

(8) improve venue in patent cases and provides for appeals of claim construction orders when warranted;

(9) give the USPTO the ability to set its fees;

(10) remove the residency restriction for judges on the United States Court of Appeals for the Federal Circuit;

(11) authorize USPTO to require patent searches with explanations when a patent application is filed;

(12) codify and improve the doctrine of inequitable conduct;

(13) give the Director of the USPTO discretion to accept late filings in certain instances;

(14) limit patent liability for institutions implementing the “Check 21” program;

(15) end USPTO “fee diversion”;

(16) make necessary technical amendments; and

(17) set the effective date of the Act.

The Patent Office Professional Association (POPA) has weighed in on the patent reform fiasco with their own list of needed changes, stating:

A far simpler solution to the prior art problem is to retain experienced and highly skilled patent examiners and provide them with sufficient time and resources so they can uncover the relevant prior art during examination. The job should be done right the first time. Despite increasing complexity of applications and growing volumes of prior art, the time allocated to examining a patent application has not changed since 1976.

The 106-page draft report will be finalized and issued as the official committee report on the July 19 bill.  The draft report and other key documents related to current patent reform legislation can be found on the IPO website.

See also:

Patent Reform and the Ethos of the American Inventor (Patently-O)

Draft Report on Senate Patent Reform Bill Circulated (Patent Docs)