Home -> Law Blog Directory -> Patent Law Blogs -> IPBiz

Patent Law

: IPBiz

"Laws against stealing America's intellectual property"

By Lawrence B. Ebert, Esq.

Further to a comment by Joe Mullin [Copying, or the lack thereof, _is_ highly relevant to all aspects of the patent debate as long the public and Congress *believe* that patent lawsuits are about copying or "stealing." That's not a "Lemley-ism", that is just reality -- backed up by many sources. ], IPBiz notes text from Senator Leahy on March 10, 2009:

Intellectual property is critical to our Nation's economy. It is an engine that drives our contemporary economy and will fuel our future. Industries that rely on intellectual property protection accounted for roughly half of all U.S. exports and represented an estimated 40% of U.S. economic growth in 2006, the last year in which our economy grew in all four quarters. Many of the jobs and expansion that can help us begin to recover from the costly economic recession will have their origin in our patent and copyright based industries. These range from computers and software programs, to new agriculture products, to our movies and music.

I am an ardent supporter of strong protection and enforcement of intellectual property rights. Last year, I led the bi-partisan effort to pass the Prioritizing Resources and Organization for Intellectual Property Act to enforce laws against stealing America's intellectual property. The Chamber of Commerce estimates that IP theft costs American companies $250 billion a year, and our economy 750,000 jobs.

As a former prosecutor, I know first-hand how important it is to have a full arsenal of legal tools to ensure that jus-tice is done. In Vermont, Hubbardton Forge makes beautiful, trademarked lamps. The Vermont Teddy Bear Company, like IBM, also relies heavily on its patented products. Likewise, SB Electronics needs patents for its film capacitor products. Burton's snowboards and logo are protected by trademarks and patents. Every state in the Nation has such companies and every community in the United States is home to creative, inventive and productive people. Americans suffer when their intellectual property is stolen, they suffer when counterfeit goods displace sales of the legitimate products, and they suffer when counterfeit products actually harm them, as is sometimes the case with fake pharmaceuticals and faulty electrical products.

Working together with 21 Senate cosponsors and our House counterparts, we moved that bill from introduction in July to the President's desk in October. I look forward to the new leadership of the Justice Department being confirmed and in place so that they may utilize the resources and tools we provided.

This year, we are working to make additional progress by modernizing the United States patent system. Last week, I joined with Senator Hatch, Chairman Conyers and Mr. Smith to reintroduce the bipartisan, bicameral Patent Reform Act of 2009 (S.515). This Committee was able to report patent reform legislation in the last Congress, and the House passed a companion bill. This year we need to enact it to help bolster our economy.

One notes that Senator Leahy did NOT talk about copying or state that patent lawsuits are about copying. He did mention stealing and theft. Patents, which are publicly available to anyone who bothers to look, define boundaries of intellectual property. Making, using, or selling something that is within the boundary of a valid patent claim IS "theft" of that IP. Senator Leahy is right on that point. And, Leahy's opponents on patent reform would not disagree. Joe Mullin, in parroting Lemley's take, is the one out-of-step. This of course is a bit ironic, because Mullin's initial point in all of this was about misreporting of patent stories, not about the patent debate.

See also Mike Masnick (TechDirt) takes on Gary Odom (PatentHawk), containing Joe Mullin's comment

http://ipbiz.blogspot.com/2009/04/joe-mullin-on-copying.html

**In passing, Senator Leahy had suggested that Arlen Specter had killed a previous Senate version of patent reform. Now that Senator Specter is not the ranking Republican, what will happen this time?

**Separately, of patent reform, from Julie Bort writing in Network World -->

Legal experts question whether The Patent Reform Act of 2009, or any legislation by Congress, can fix these problems. Congress would have to understand the intricacies of the software business. "Congress doesn't do a good job of carving out different rules for different industries," says Mark Lemley, professor of law at Stanford University and author of six books on the patent system.Instead Lemley says that the courts should impose limits and guidelines for monetary awards -- making patent litigation less profitable. Perhaps outright reverse engineering would get bigger awards than infringement claims based on vague software descriptions. This will encourage patent attorneys to write better patents. And that would reduce the overall litigation, and the cost of e-discovery.

Lemley also believes that the courts can effectively craft industry-specific rules as they rule on individual cases. This is a process that has already begun. Prior to the eBay vs. MercExchange patent battle, settled by the Supreme Court in 2006, if a company was found guilty of patent infringement it would be forced to stop operating. But with the eBay case, the Supreme Court unanimously ruled that an injunction should not automatically be issued based on a finding of patent infringement.

Lemley has also proposed the idea of a "gold standard" patent, which is more costly to obtain but better researched, better written and harder to overturn. Patent lawyers such as Krajec are not fond of the idea. He believes that all lawyers will try to protect their clients by always using the gold standard, thereby raising the costs of patents. Patents applica-tions can run a company thousands of dollars, and are already unaffordable for many start-ups.

Bort did not mention On Gold-Plating Patents from IPT in November 2008.

Full post as published by IPBiz on April 29, 2009 (boomark / email).