RIP Patent Reform 2010?
"I used to be indecisive; now I'm not sure."
- Anonymous
Well, in the on-again-off-again world of patent reform, it appears that Congress has its finger on the "off" switch. From a recent EE Times article:
Backing for a draft patent reform bill in the U.S. Senate appears to have waned while support is rising for a more recent proposal to give the patent office more funds to deal with its historic backlog of applications.
Observers say neither initiative is likely to pass in the current Congress though change is urgently needed. A patent reform bill that passed out of the Senate Judiciary Committee last year has lost key industry backing, say several sources. A separate bill introduced in May to bolster funding for the patent office faces "a civil war" between warring House committees, said one observer.
"The prospects are fairly limited," for all the proposed bills, said Paul Michel, former Chief Judge of the U. S. Court of Appeals for the Federal Circuit .
Read EE Times, "Support for patent office rises as reform bill wanes" (link)
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No big surprise here. However, since I was abused by some anonymous coward the last time I expressed (reasoned) views on why I hold out little hope for real reform in the near future, I think I'll keep my more detailed thoughts to myself this time!
Even though the damages provision was bad, it was not the less than the 'damages-apportionment' disaster that the thieves from Silicon Valley tried to get in the first place. These thieves WILL try that again. The problem with the 'damages-apportionment' is that since eBay injunctions are much hard to get- if I cannot get an injunction and I cannot get meaningful damages, there is NO incentive for an infringer to license IP. He will just roll the dice.
THE PATENT COMMUNITY SHOULD BE READY FOR THE NEXT CONGRESS WHEN THE PATENT FAIRNESS THIEVES WILL TRY TO PURCHASE LEGISLATORS TO DISMANTLE THE PATENT SYSTEM.
PS The REAL disaster of the current bill is the sloppily-drafted first to file provision, which effectively-killed the one year grace period. I understand moving from FTI to FTF but other countries such as Canada and Australia have decent one-year grace periods even in an FTF environment. The current bill is just SLOPPY (or sneaky or both).
I doubt very much that a majority of US-based practitioners and applicants would consider the Australian grace period to be a "decent" substitute for the current US provisions.
It is, at best, a "safety net" for applicants who, through ignorance or accident, disclose their inventions before filing a patent application.
This reminder of some common misconceptions regarding the grace period has prompted me to write up a short article on my own blog. If you are interested in further details, see: http://patentology.blogspot.com/2010/08/note-on-limitations-of-australian-grace.html
It's unfortunate (though not unexpected) that Congress has once again failed to pass much-needed patent reform. To me, the Conyers bill's provision that would have prohibited fee diversion seemed like a no-brainer. Looks like that extra $129 million recently returned to the USPTO (via legislation signed into law by President Obama) will be needed more than ever.
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