Late yesterday afternoon it came to my attention that an article I recently wrote was referenced by Senator Jon Kyl (R-AZ) on the floor of the United States Senate. The article is titled Senate to Vote on Patent Reform, First to File Fight Looms and addresses the potential change from a first to invent system (which we have currently) to a first to file system (as proposed by S. 23). Needless to say, I was flattered by the attention given to this article by Senator Kyl.
As flattering as it was to be inserted into the patent reform debate in some peripheral way, the real news from yesterday was the Manager’s Amendment was passed by a vote of 97-2. The Manager’s Amendment, cosponsored by Senator Patrick Leahy, Senator Charles Grassley (R-IA) and Senator Kyl, included language that would allow the United States Patent and Trademark Office to keep the fees it collects. The Manager’s Amendment reportedly also included insertions favored by Congressman Lamar Smith (R-TX), who is chair of the House Judiciary Committee. See Momentum build for patent bill. Thus, it seems quite likely that patent reform will soon become a reality.
Section 9 of S. 23 already had fee setting authority included, so the addition of provisions akin to the Coburn Amendment, which allow the Patent Office to keep the fees it collects, would create a fully sustainable USPTO, and one that has the resources it really needs to once and for all address the enormous patent application backlog and unacceptably high average pendency. In short, coupled with the efficiency enhancements Director Kappos has been able to achieve on the margins the full and complete self funding that will take place if patent reform is enacted will be enormously positive for all applicants.
The last remaining issue that seems to have the potential to derail patent reform is the first to file issue. Senator Diane Feinstein (D-CA) is still expected to submit an amendment to strip first to file from S. 23, but yesterday she reportedly acknowledged that she likely does not have the votes to succeed in that effort. See Momentum build for patent bill.
The argument that Director Kappos and others have used for a long time is that increasing the speed at which decisions are made on patent applications will result in worthwhile innovations being patented in a technologically relevant time frame. Under the current delays many innovations stay pending past their useful life, so when a patent is obtained there is little realistic opportunity to leverage the patent to build a business, attract investors and create jobs. Patents awarded on a quicker, technologically relevant time frame should absolutely lead to more job creation and organic growth of the U.S. economy through reliance on high-paying technology based jobs.
For those who might be interested in our moment in the spotlight yesterday, please see the video clip below, courtesy of C-SPAN.