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Patent Reform Legislation Coming to Town


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: March 1, 2009 @ 10:25 pm
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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

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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

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Posted in: Congress, IP News, IPWatchdog.com Articles, Patent Reform, Patents

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

6 comments
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  1. I just stopped by your blog and thought I would say hello. I like your site design. Looking forward to reading more down the road.

  2. From EE times:

    Big electronics companies are pushing hard for such legislation. Leahy held a $10,000 per plate dinner in Silicon Valley on February 17. It was hosted by the general counsels of Apple, Cisco, Hewlett-Packard, Intel, Google, Oracle, Symantec and Yahoo among others.

  3. Dont forget who’s supporting this.
    Let’s see, we have:
    American bankers Association, Bank of America, Citigroup
    (see http://www.patentfairness.org/pdf/CPF_letter_to_Congress_Feb.pdf)
    Yes, the same folks who brought us ‘liar loans,’ CDOs, trillion dollar bail-outs,
    and of course, taxpayer funding for 6 (and 7) figure bonuses.

    Now they are playing victim and are crying for ‘fairness.’

    Where is Obama in all THIS???!!!
    He was supposed to take power AWAY from the lobbyists.

  4. Gene,

    Amen. When will the silliness end on this oxymoron called “patent law reform.” Now those idiots pushing this nonsense want to stack the deck by not even having any hearings on it so it can be exposed for what it is: the Coalition for Patent Fairness “Dream Come True” that was bought and paid for.

    You would think that even Congress would care about the market tanking and Americans losing jobs by the hundreds of thousands each month, but obviously, staying paid and in office is more important. Once again, I will send letters to my Congressman (Boehner who is very much against this nonsense) and Senators (Brown, who probably isn’t and no surprise there, and Voinivich, who is likely against it) about the impact this silliness will have on American jobs. Frankly, Congress is ruled by partisan fools who I didn’t vote for and will never vote for. If this so-called “patent law reform” passes, you might as well say “sayonara” to America’s global competitiveness and any hope for small business.

  5. EG-

    No surprise that I agree with you. If you do write some letters and want to share them with me for publication (anonymous publication if you like) that would be great. Would love to have your thoughts.

    I hope all is well.

    -Gene

  6. nice work, Gene