Monday, February 09, 2009

Patent Reform 2009 Gets Underway

While rumblings persisted over the last two weeks, Congressional spokespersons and staffers have now come out publicly to confirm that (1) patent reform will be a "top priority" over the coming year, and (2) any resulting legislation will be on a "fast track."

What's in the legislation? No one knows yet, but it is being reported that Congress will be picking up where they left off in 2007-08:

Staffers for Judiciary Chairman Patrick Leahy and Sen. Orrin Hatch, R-Utah, have resumed negotiations on legislation that passed the committee 13-5 in 2007 but died after Leahy could not win Judiciary ranking member Arlen Specter's support to bring the bill to the floor last spring.

Rumors are that a draft bill is expected early in the first session of this Congress, with possible hearings scheduled for March or April.

In light of judicial activity over the last 16 months, some are beginning to question the urgency of the reform. According to Taraneh Maghame, chief patent counsel for Tessera Inc., the patent bar should "let the dust settle on the effectiveness of the recent cases because they went a long way to address the needs people had raised . . . [p]utting a whole layer of patent reform on top of that could have ramifications for the economy." Kevin Rivette, chair of the USPTO's advisory board believes that Congress should wait up to three years before tackling patent reform again.

See, EE Times, "Congress to again take up patent reform" (link).

See also Gene Quinn's IP Watchdog, "Patent Reform Reportedly Top Priority in Congress" (link)

Of course, others believe that major aspects of patent reform are best left for the courts, not Congress. On Friday, the Coalition for 21st Century Patent Reform, formally issued a paper (presented earlier at meetings of the AIPLA and ACPC) arguing that the fast pace of change in patent law made the courts more suitable for change.

The paper is titled "Reform of a Fast-Moving Target: The Development of Patent Law Since the 2004 National Academies Report", written by litigator William C. Rooklidge:
“[T]he patent law changes that have occurred since 2004 suggest that the courts—not the legislature—should be entrusted with many of the patent reform topics that have been considered. Side benefits of this division of labor likely include that a legislative package stripped of the contentious issues more suitable to resolution by the courts that might well find agreement, or at least enough agreement to be enacted.”

Read a copy of the report here. For a summary of the paper, click here.

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