Patent reform returns to back-burnerPatent reform returns to back-burner
by: Michael Rosen
October 13, 2015 6:00 am
And like that – it’s gone.
Legislative patent reform, that is, not Keyser Soze.
Only a month ago, as Congress returned from its summer recess, both the House and the Senate appeared poised to advance several patent reform measures that had stalled before the recess amid heavy fighting between different interest groups.
There seemed to be momentum toward something happening in Congress, or at least that’s what most of our distinguished experts expressed during AEI’s wide-ranging panel on patent reform in early September (video of which is available here).
But then House Speaker John Boehner (R-OH) resigned his post, a chaotic (and still-unresolved) succession battle ensued, and patent reform appeared to fall off a cliff.
In parallel, the same warring interest groups continued to do battle over changes to new Patent Office proceedings like inter partes review (IPR), whether the biotech sector should be exempted from IPR, and the contours of patent litigation.
We’re “still negotiating IPR, still considering whether or not anybody needs a carveout, still considering what the cost is if there is a carveout,” Senate Judiciary Committee Chairman Charles Grassley (R-IA) told Politico last week. Grassley also believes it’s premature to bring the measure to Senate Majority Leader Mitch McConnell. “Until we get a final product,” he said, “there’s not much sense in talking to him.”
As the fight rages between different groups, another senator offered a less martial, though more colorful, metaphor.
“It’s a difficult coalition because you’ve got to keep all the bullfrogs in the wheelbarrow. If you change something, one of them jumps out in order to get another one in,” Sen. John Cornyn (R-TX), a longtime reform advocate, told Politico. “I’d love to see it move, and hopefully if we get it moved over here, then it would help the House get their act together.”
Among the boisterous bullfrogs is the Innovation Alliance, a coalition of technology companies headlined by Qualcomm that largely opposes the current raft of legislation. The Alliance has embarked on what it calls the “Save the Inventor campaign,” proclaiming as its battle cry that “the PATENT Act and Innovation Act each do one thing well: unite groups that oppose both. This legislation’s sweeping language will undermine the patent system and the jobs this system creates.”
In an enlightening interview, patent attorney Gene Quinn – who blogs about legislative reform and other events at ipwatchdog.com – cross-examined Sen. Chris Coons (D-DE) and Rep. Thomas Massie (R-KY) about their views. Coons authored the STRONG Patents Act, which among other things would raise the standards required to invalidate patents in IPR, while Massie is a prominent opponent of the House bill.
Coons contended that “this constitutionally created and vital property right has to be defensible” and that “patent litigation has to remain capable of defending unique inventions, thus the Save the Inventor campaign.” He also acknowledged the dangers caused by patent “trolls” but argued that they “can be dealt with more narrowly in a more focused and targeted way that just deals with abusive litigation practices[,] and I happen to think that we already see strong movement in that direction” in the courts and at the Patent Office. “Don’t throw the baby out with the bath water,” he exhorted his fellow lawmakers.
For his part, Massie argued that “we have the most innovation because we have the strongest patent system,” and the proof is in the pudding. “I’m not a lawyer, I’m an engineer,” Massie continued. “I went to MIT and I studied electrical and mechanical engineering because I love creating and right there in the laboratory and in the labs next to me people were inventing stuff all of the time and the great thing about being there in that hotbed at MIT is everybody wanted to start a company[.]” (Incidentally, Massie knows what he’s talking about, engineering-wise: in 1995, he was an inaugural winner of the Lemelson-MIT Student Prize for inventors for his advances in 3-D touch technology – decades before Apple.)
Massie believes the Innovation Act, however, “would have watered down our patent system through making it impossible to defend your patent.”
Note his use of the past tense, suggesting he thinks the bill has run out of steam. But as Quinn himself posited, “patent reform will hang over the industry indefinitely, and if an opening arises it could move very quickly to a vote in either or both the Senate and the House.”
It’s possible they’re both right. In my next post, I’ll explain how, and give voice to advocates of the legislation.
- https://innovationalliance.net/patent-news/techpolicydaily-com-patent-reform-returns-back-burner-michael-rosen/