Patent Law

Patent Reform Opponents Send Letter to President Obama

By Douglas J. Sorocco, J. Matthew Buchanan, Laura C. Woods and Emily E. Campbell.

Well, that surely didn?t take long.

Gene Quinn, at IPWatchdog.com, points to a letter sent to President Obama (PDF) from over 130 manufacturing companies located in the United States urging the administration to shelve patent reform.  In the letter, the parties clearly articulate their concerns about patent reform ?proposals? that have been floated and the perceived consequences to manufacturing employment and competitiveness.

While there is some ambiguity out there about President Obama?s plans and priorities regarding patent reform (although, he did mention the awful ?gold plated? scenario) ? I think it is probably too early to read tea leaves.

Labor unions and traditional Democratic labor groups backed the campaign and election efforts in unprecedented ways and they will have a significant voice and influence at the negotiating table ? a position that may have been somewhat discounted in the previous administration.  Considering labor?s opposition to patent reform in 2007, President Obama?s ?perceived? willingness to push patent reform should not be taken for granted by his high technology/software supporters.

It appears that the manufacturing letter may be the first salvo to remind President Obama of the strength of support he received from labor and the manufacturing sectors.  I would predict that similar letters in support of patent reform will be forthcoming from the Coalition of Anti-Patent This and Coalition of Anti-Patent That. (Did that last sentence tip off my personal opinion of the matter?)

One question I do have ? does anyone really think these letters are useful?  My guess is that 5-10 letters written by constituents are more important to the vast majority of members of Congress than a form letter signed on by a couple hundred interested parties.  But then again, I am a fan of ?Mr. Smith Goes to Washington.?

Who will have the administration?s ear?  My best guess ? no one.  In the face of the overwhelming challenges facing the country this year and the relatively low profile of patent reform, I would bet that patent reform is dead for serious consideration in the 111th Congress.  If I am wrong ? I?ll buy you a beer if you ask.  Catch is ? you have to come to Oklahoma City to collect.

Turning away from WAGs, Gene does an excellent job excerpting the manufacturers? concerns and the jostling for position that the different patent reform stakeholders are engaged.  Highlights include:

• ?A recent study focusing on the impact of apportionment legislation estimates that this change alone would put at risk up to 298,000 manufacturing jobs and reduce R&D investment by up to $66 billion.  This would be a negative outcome even when our economy is strong; at a time of economic crisis, it would be tragic.? 
   
• ?We feel strongly that the prosperity of a few companies within two industries should not come at the expense of a larger group of stakeholders.?  
   
• ?[T]here is no explosion in patent litigation. In 1993, lawsuits were 1.45% of patents granted. In 2007, lawsuits were 1.48% of patents granted. The number fluctuates from year to year, but it has never indicated a system out of control. (Source: USPTO Annual Reports, Federal Judicial Statistics)?  
   
• ?[T]here is no explosion in patent damage awards. Adjusting for inflation, the median annual patent damages award has actually dropped slightly over the last 13 years. In constant dollars, the median was $3.9 million from 1995 through 2000, and $3.8 million from 2001 through 2007. (Source: 2008 Patent Litigation Study, PriceWaterhouseCoopers.)? 
   
• ?It is crucial to remember that patent damages are imposed only after patent validity and infringement are determined on the merits. In other words, those paying damages have been found to have unlawfully used intellectual property belonging to someone else.?  
   
• ?It would be a terrible mistake to allow the increase in patent applications to become an excuse to undermine patent protections. Rather, Congress should take advantage of Americans? growing desire to invent by ensuring that the U.S. Patent and Trademark Office (?USPTO?) has the resources and management to handle the increased number of applications in a thorough and timely manner.?  
   
• ?The legislation introduced in the 110th Congress dealt with patent issues on the back end rather than the front end, i.e., it attempted to deal with the symptoms of poor patent quality and growing pendency rather than addressing these issues directly. Many of the problems identified by legislative reform proponents as reasons for such reforms are best addressed instead by reforms of USPTO operations.? 
   

A few other patent blogs have taken a stab at the proverbial crystal ball gazing as to President Obama?s intentions ? Patent Baristas, Patently-O, and PatentHawk, for example.  One, two, many, none, or all of us may be wrong/right. 

What do you think?  I would love to hear your thoughts/comments.

Related posts:

1. Labor unions join patent reform fight ...
2. patent reform bush-whacked: the decider weighs in ...
3. Patent Reform – Getting Ready for the August Recess ...

Full post as published by Phosita on February 10, 2009 (boomark / email).