An open letter to the 110th Congress - Welcome to Patent Reform

Members of the 110th Congress:

Congratulations and welcome.  The patent community is extremely pleased you’re here and hopes you’re already preparing to roll up your sleeves and get to work on patent reform.

But, before you jump the gun and do something drastic, I thought I’d give you a quick glimpse at the status quo.

There’s no hiding it….you’re inheriting a mess.  Over the last several years, we’ve seen several comprehensive patent reform bills proposed, including the disastrous Patent Act of 2005.  Each and every one of these bills has suffered the same fate - no movement whatsoever in Congress.  None.

But, that doesn’t mean we haven’t learned something.  Each of the ill-fated patent reform bills have shown us, time and again, that there is a great divide between at least two factions in the patent world - pharma/biotech on one side and computers/software on the other.  Each side claims to want an improved patent system.  Congressional patent reform efforts to date have done nothing but show the world that “the improvements” cannot be agreed upon.

So what can you do in this environment?  I’m glad you asked.  Here’s a brief list.

1.  Take a moment to thank your favorite Member of the 109th Congress as it did a wonderful job of building the record.  Plenty of interesting and relevant information has been collected, and the various viewpoints on several controversial issues have been thoroughly documented.

Thanks to the 109th, we know where everybody stands on the hottest patent reform issues, including switching to a first-to-file system, post grant review and the controversial second window, and apportionment of damages, among others.

You shouldn’t waste precious time rebuilding the record.  Go ahead and move straight to #2.

2.  Assuming you decide that legislative reform is needed, you’ll need to roll up your sleeves and be prepared to do some hard and ugly work.  You need to boil away the contentious issues and provide a patent reform package that all patent stakeholders view as an improvement to the system.  You might be surprised to learn that consensus or near consensus exists on a few of the tough issues.  Abandon the comprehensive approach and focus on the core improvements.  Who knows, you might even be able to move a bill that takes this approach.

3.  Take a look at the Patent and Trademark Office.  PTO Administration adopted a very aggressive approach to cleaning its own house last year.  Luckily, non of the drastic, and arguably illegal, proposed changes have been implemented, yet.  The community learned a valuable lesson from PTO’s actions last year - the current Administration seems willing to take drastic action to fix perceived problems.  And the proposed rules are just the beginning…take a gander at the Draft Strategic Plan the Office is working on.  It seems the Administration has its own view of patent reform; you probably should look into it.  A clear indication of the authority (or lack thereof) of the Office to take such actions - including placing limits on legal continuation practice - would be very much appreciated, no doubt by the patent community as a whole as well as by PTO Administration.

4.  Step up and take control of the checkbook.  Give the Office its money.  All of it.  Had your predecessors put this issue to rest once and for all, you probably wouldn’t have to worry about the previous point.  Be kind to the 111th and put a permanent end to fee diversion, no matter how great the temptation.

5.  Pick up the gauntlet and at least look at it.  The Supreme Court threw a gauntlet squarely at your feet last year in eBay v. MercExchange.  You need to ask the fundamental question:  What do we intend to grant patentees with the right to exclude?   You may, in fact, decide that your views are consistent with those of the Supreme Court.  If so, that’s fine.  But, you have to at least ask the question of whether that decision is consistent with your intentions.  Ignoring this significant gauntlet that stands to have dramatic and lasting effects on our patent system is, simply put, irresponsible. 

6.  Don’t lose hope.  Take a look around.  There are several good, reform-type things going on in the patent world.  Check out PatentFizz, the web site that allows anyone - anyone - to submit any comment on an issued United States Patent.  How’s that for post grant review?  Take a look at Google’s simple and effective patent search…it’s an amazing tool that is providing improved access to prior art.  Certainly that’s an improvement everyone can agree on.

It’s a pretty short list, actually.  I’m sure it amounts to more than two years work, so I won’t keep you.  Get’r done.