Patent Law

Hatched

By Gary Odom and Jordan Kuhn

Sen. Orin Hatch (R-UT), co-sponsor of the proposed Senate Patent Act, before walking out on the Executive Meeting of the Judiciary Committee meeting in a hissy fit: "My primary purpose for doing this bill was to improve patent quality and limit unnecessary and unproductive litigation costs. I do not believe the bill, in its current form, accomplishes those goals." Sen. Leahy (D-VT), Committee chair, attempted to cajole him from leaving, by sympathizing that he too would prefer gutting damages for patent infringement, which the watered-down version before the Committee lacked.

Before he walked out, Hatch let loose his facile grip on the issues, revealing his lack of understanding about the basics of patent law. Seemingly referring to inequitable conduct not being revised to his satisfaction, Hatch pooted: "you can still sue for fraud if you want to, and you can still fix your patent and narrow it before litigation." Inequitable conduct is not fraud, and it's a defense, not something one can sue for. Hatch is "sick and tired of non-innovators who use inequitable conduct provisions and then walk away as infringers." While inequitable conduct is a frequent charge, its proof requires meeting a high bar.

Sen. Specter (R-PA) wanted to wait and not vote the bill out of Committee until Senator Kyl (R-AZ) had a chance to submit amendments on post-grant inquisition. Kyl said he realizes the amendment wasn't likely to be adopted, because the patent office is against overwhelming itself further. Kyl wants Leahy to call the PTO and ask why they think that allowing post-grant inquisitions at the drop of a hat would be burdensome.

The unsatisfactory bill passed the Committee. Last year, the House got their version of patent reform passed while the Senate sat on its thumbs. This year, it's the Senate's turn for futile gesture.

Though the bill passed the Committee 15-4, the meeting was somewhat chaotic, emphasizing the circus atmosphere of clowns at work.

Leahy, who looks ancient, but appears to have the mental age of a four-year-old, got upset because he wanted to the bill passed right then, today. He got his wish. Don't applaud, just throw more money.

There's the point. With the bill before the Senate, it looks more frightfully like something might pass. The lobbyists are thus whipped into a frenzy of splashing money out for influence. There's Leahy's game plan - give the appearance of forward progress by moving the jalopy along, even if it has to be shoved.

The disharmony is apparent. To the jaundiced eye, this year looks a retread of previous years - noises and movement to draw lobbyist lucre, with not much prospect of enactment.

But looks may prove deceiving, considering that the most contentious issue, damages, seems to be so diluted as to seem innocuous. The trend seems to be codifying case law. In the case of damages, the Georgia-Pacific factors. With willfulness, Seagate. Forum shopping, TS Tech. In a hocus-pocus of nothing seeming something, that sort of law could be enacted.

But don't bet on it. Once a new patent act is passed, all that lobbyist interest fades for years, another cash cow let wandering afield. Better to milk it for all its worth.

Pictured: Sen. Leahy whispering in the ear of Sen. Specter.

More: Reuters; IPWatchdog (Gene Quinn)

Full post as published by The Patent Prospector on April 02, 2009 (boomark / email).