On Monday I wrote about how Senator Arlen Specter (R-PA) was opposed to the pending patent reform legislation and how there was going to be an Executive Meeting of the Judiciary Committee this morning at 10:00 am to discuss some pending nominations before the committee and the patent reform legislation supported by Senator Patrick Leahy (D-VT) and Senator Orin Hatch (R-UT).  To use the words of Lee Corso of ESPN College Football fame – Not so fast my friend!  After originally announcing that the meeting would begin at 10:00 am, Senator Leahy decided the next day that the meeting would begin at 9:30 am.  Not a major change I suppose, but if you were like me and planning to tune into the live webcast of the meeting at 10:00 am you, and I, were surprised to learn that the meeting time had changed. 

If you tried to watch the webcast by clicking on the several links to it on the Judiciary Committee website you discovered that the live webcast could not be found and/or that the page you were looking for does not exist.  Perhaps this is just coincidence. I learned early on in my legal career that you should not jump to the conclusion of malice where an explanation of incompetence is available. Given the sad state of affairs in our government these days, voting on bills that are not read, complaining about provisions in bills that were voted on without reading and the lack of accountability by leaders in Congress for what has happened to the economy, it seems that incompetence is the most likely explanation. Notwithstanding, I have to wonder.

Senator Leahy has made it clear over and over again that he wants to push patent reform through the Judiciary Committee without having additional meetings and hearings. It is his belief that because the Judiciary Committee has been dealing with patent reform for years now there is no need to hold additional hearings or meetings, but begrudgingly acquiesced when Senator Specter and others used Senate procedural measures to prevent a vote last week in Committee. Given the fact that Senator Leahy isn’t interested in further discussions and only seems to be humoring Senator Specter, excuse me for leaning away from incompetence as the answer and suspecting there is a healthy dose of malice involved with the meeting time change and the fact that it is not being webcast live as it is supposed to be.

I really cannot say that I don’t have a dog in this fight. I do. I am a patent attorney and I have been following patent reform for years now, explaining every chance I can why whatever proposal Senator Leahy puts forth is really ill-conceived and not at all calculated to solve the problems facing the US patent system. I don’t have anything personally against Senator Leahy, or Senator Hatch for that matter. As an American citizen I do have issues with how Congress seems to be working these days.

The “vote now, listen later, read never” mentality that is permeating through much of Congress is alarming and antithetical to the American form of government and the transparency promised by President Barack Obama during his campaign. I realize that President Obama cannot mandate how Congress orders its own affairs, but the reality is there were millions of people who voted for President Obama because they believed change for the better would occur and that government would be run with the highest ethical and moral standards. Rushing to judgment, voting without real debate and allegedly open meetings being held in private are not the American way.

For the life of me I cannot understand why it is that Senator Leahy thinks there is not any need for further debate, discussion, open meetings and hearings on patent reform. Does he not realize that the bill he presented in the last Congress could not gain support of enough Senators to become the law of the land? Obviously, he realizes that and is trying to get a newly configured Senate to move his agenda for patent reform forward. Too bad he doesn’t believe the new Senators have a right to become informed on the bill before it is rushed through Committee and to the floor of the Senate.

It is also too bad that he refuses to acknowledge that because Congress has dragged their feet for so long on patent reform the reforms in the present legislation are no longer the changes that are needed to help the patent system. The Federal Circuit and Supreme Court have stepped in and addressed many of the situations that needed Congressional reform years ago. If Congress is going to do anything in terms of patent reform it needs to first consider whether what the Federal Circuit and Supreme Court have done makes sense and then figure out what needs to be done to address the growing crisis at the Patent Office. For some suggestions see 7 Patent Reform Suggestions for Congress.

Assuming the Executive Meeting of the Judiciary Committee on patent reform is being taped and will be made available in the Judiciary Committee archives I will watch it later today. In the meantime, if you have any interest in the patent system you need to get on the phone and call your Representatives and Senators. Write them and e-mail them. Tell them that patent reform that benefits only select companies in the high tech sector is unacceptable. With pharma, bio-tech, manufacturing, unions, green companies and so many others all lined up against the Leahy-Hatch bill we really need to stop and ask what is going on. Why would Congress rush through a bill that only benefits a small percentage of companies at a time when we really need to be providing meaningful patent rights to start-up companies and research and development companies?

Mr. President, if you really want to support green initiatives that is going to take technology development. As you said on Tuesday in your press conference, there is not going to be any silver bullet. There will be no quick and easy cure for the economy, and there is going to be no quick and easy route to energy independence. If one critical piece of our economic recovery and national security is to become energy independent we need to give incentive to existing companies who are incrementally innovating in ways that will reduce overall energy consumption. We need to provide incentives for new industries to develop to create the new technologies that will incrementally make America more environmentally friendly, more energy independent and less dependent on sources of energy provided by often hostile regimes.

The only way for the US government to get American industry to put their foot on the accelerator is to provide meaningful patent rights, which are granted in a technologically relevant time frame, and which provide dis-incentives for those who might otherwise seek to infringe. This is the only way to get investment and growth. With an estimated $10 trillion sitting on the sidelines in the US alone, it is practically a sin to allow passage of a bill that would give incentivize infringement, keep investors on the sidelines, prevent the next generation of new technologies from developing and stop in its tracks an engine that could employ millions of workers over the next decade.

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