It is almost impossible to believe that given all the turmoil our economy is facing, with trillions of dollars being spent by the US government as if the US dollar were some kind of Monopoly money, but patent reform legislation is likely to be introduced this week, perhaps as early as Monday, March 2, 2008. Why is Congress thinking about patent reform with the Dow closing on Friday at 7,062.93? In case you have not been following the news on the economy, and who could blame you if you are not given how depressing it is, the Dow’s Friday close was the lowest close since May 1, 1997 and now down over 50% from its record high of 14,164.53 reached in October 2007. Nevertheless and undeterred, the United States Congress is poised to introduce patent reform legislation in the coming days that will cost more US jobs at a time when we simply do not have any jobs to spare. Increasingly I feel as if I am in a dream, a nightmare really, where common sense continues to be suspended. I hope I wake up soon from this nightmare. I’m not sure how much more I can take.
So what is patent reform going to look like when it is introduced later this month? I am told it will look exactly like the failed patent reform legislation from 2008. On top of that, I have heard second-hand that senior staffers on Capitol Hill have been telling those opposed to reform that there will be no hearings, it is just going to get done. Apparently all in the Congress know the whole story already and don’t need to hold any hearings because they have heard it all before and the time for talk is over. We just need to have action and get the previously failed patent reform enacted with all due speed. Had Congress not just passed a stimulus bill that was over 1,000 pages only hours after the bill was printed and before ANYONE read it I would not believe that act first, talk later could happen. But we all know that is the new way in Washington, DC. I guess that is change we can believe in!
As I wrote a few weeks ago when I learned that patent reform will be a top priority in congress this year, the fact is that we do not need sweeping patent reform because the courts have largely addressed many of the issues that were so pressing, including reform of willful infringement damages and taking care of forum shopping. So what is the point of trying to push through patent reform right now when the remaining US manufacturers have a study that has to my knowledge not been challenged stating that patent reform “would put at risk up to 298,000 manufacturing jobs and reduce R&D investment by up to $66 billion.” So Congress is going to ram through patent reform legislation without hearings, to address many issues the Federal Circuit has resolved, against the wishes of Federal Circuit Chief Judge Michel and which will cost us another 298,000 jobs and billions in research and development investment. OK, what’s the gag? I am obviously missing something, or Congress is not reading the Wall Street Journal or any other newspaper for that matter. Really, I wish our leaders would actually take some time to open their eyes and see what is going on before they decide to do whatever it is that they want without any reason to suspect what they are doing will make anything better.
Allow me to suggest that Congress and the Executive Branch ought to think about adopting a version of the Hippocratic Oath and focus on the “do no harm” part. They also should focus on the part that says a doctor should not be afraid to say they do not know the answer and call in specialists when necessary. Given that there are no patent experts in Congress it would seem that the very least that Congress should do is call in experts and hold hearings on patent reform to determine what needs to be done, if anything. And while the senior staffers on the Hill think they know it all and don’t need to hear it all over again, allow me to point out the obvious. The 111th Congress is different than the 110th Congress. You see, not all the members of the House and Senate are the same now as they were back in 2008, so saying that there needs to be no hearings because everyone knows the stories is arrogant, presumptuous and perpetuates the reality that not all of our leaders read or even consider the legislation they vote on, and that is scary. If that is not unconstitutional then I guess I just don’t understand the Constitution. I know the Constitution doesn’t say our leaders need to read what they vote on, but don’t you think that really was implied or considered to be obvious by our founding fathers?
So what will the fate of patent reform legislation be? If it looks anything like the patent reform legislation that failed in 2008 I hope these new attempts fail! We need sensible patent reform that makes the process and the system better. But there is no hope of getting any legislative reform as long as apportionment of damages is included in the legislation. That will divide equally influential constituencies and that will lead to nothing happening again, which will only make the patent system and patent process worse.
About the Author
|Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)
B.S. in Electrical Engineering, Rutgers University
J.D., Franklin Pierce Law Center
L.L.M. in Intellectual Property, Franklin Pierce Law Center
Send me an e-mail
Gene is a US Patent Attorney, Law Professor and the founder of IPWatchdog.com. He teaches patent bar review courses and is a member of the Board of Directors of the United Inventors Association. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide