Intellectual Property Law

The problem facing Congress as it attempts to craft patent reform legislation became starkly apparent again in hearings held this week by the Senate Judiciary Committee?s Sub-Committee on Intellectual Property. As we have reported on a number of occasions, Congress, prodded in general by the technology community, has been considering several potentially substantial reforms to the patent laws, but thus far has not come close to bringing a bill to the floor of either chamber. One of the primary reasons for this seemingly-perpetual stalemate is that different industries within the technology world have very different views on what needs to be reformed and how best to accomplish the reforms.

The Senate hearings that took place this week illustrated this situation perfectly. The purpose of the hearings was to receive input on a single proposed reform proposal: expanded post-grant review procedures conducted by the Patent Office. Even as to this single piece of possible reform, the five speakers who addressed the Sub-Committee expressed five divergent ? and strongly held ? opinions on whether this procedure is a good idea and, if so, what the procedure should look like. A representative of technology giant Cisco Systems urged the Sub-Committee to adopt a two-tiered post-grant review protocol that would permit a first challenge to a patent immediately after it issues and a second challenge after the filing of an infringement suit by the patentee. This two-tiered approach would, according to the witness, reduce the number of questionable patents and the cost of patent litigation. An attorney with J.P. Morgan Chase spoke in favor of the two-tiered reform, but said that a number of other changes need to be made as well.

A speaker from Johnson & Johnson also advocated the creation of a stronger post-grant review system, but rather than agreeing with the two-tiered approach stated that a single challenge should be allowed at any time within the first nine months following issuance of a patent. Taking the opposite side on virtually all of the issues, a principal with a patent acquisition company argued that the expressed concern of ?bad? patents is greatly overblown and is the creation of technology companies that infringe the patents of others. He also predicted that significant patent law reforms would weaken the system and harm innovation and said that a stronger post-grant review process would not materially affect patent litigation. Finally, a law professor testified in favor of more substantial post-grant reviews, but cautioned against requiring such reviews to take place within a particular time because of the often lengthy lag time between the issuance of a patent and the patented technology becoming commercially viable.

Will Congress ever be able to find a consensus that would ease the passage of true patent reform? We will keep watching.

Today's Blogger: Bob Sloss