Patent Baristas

The U.S. House of Representatives’ Committee on the Judiciary is holding hearings on H.R. 1260, the “Patent Reform Act of 2009” today and, so far, the testimony is pretty much about what you’d expect.

Phillip Johnson Chief IP Counsel for J&J, and Bernard Cassidy, Senior VP and GC at Tessera, laid out that strong patent protection is critical to protecting U.S. businesses.  It was no surprise that the bulk of the discussion was on calculation of damage awards and how the current system works (or is broken) depending upon who was speaking at the time.

David Simon, Chief Patent Counsel at Intel, and Mark Chandler, Senior VP at Cisco, held close to the talking points about the need to limit damages over patent lawsuits brought against high-tech companies by patent-holding companies that make no products and offer no services but exist solely to extract royalty payments by threatening litigation.

Dean Kamen, DEKA Research and Development, spoke about being an inventor (with patents on more than 150 devices, including the Segway) and that he was — in essence — a patent troll for asserting patents and not actually making a product. I thought it was disrespectful of him to show up in a casual, short-sleeved shirt like he was going to a backyard barbecue (is that a swizzle stick in his pocket?) but he added some good discussion from the perspective of the inventor.

Representative Jackson Lee (D-TX) remarked that she approved of his casual attire since he “looked like an inventor” and we “need more of that.”  But, he’s not Steve Jobs and I think he can afford a jacket and tie.

Phillip Johnson, Chief IP Counsel for J&J, made a good point that, while difficult to define, frivolous lawsuits are brought by plaintiffs who bring a $50 million dollar lawsuit and then sit down and say “Hey, it will cost you $5 million to defend the suit, we’ll settle for $2 million.”  Rep. Brad Shaw (D-CA) got a good laugh about how legislation could ever be drafted to provide for lower damages for those with impure intentions.

In the end, the discussion devolved into “Let’s beat up on software patents.” John Thomas, Professor at Georgetown Law School, expressed that he thought the Bilski case does not go far enough since (not even clever) patent drafters can get around its restrictions.  When it was finally suggested that this be left to the courts and not legislation, Rep. Linda Sánchez (D-CA) asked if that meant they trusted the courts more than Congress.

We’ll keep you posted on developments.