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BusinessWeek presents Leahy (pro)/Rohrabacher (con) on patent reform

By Lawrence B. Ebert, Esq.

In "The Debate Room", BusinessWeek gave pro/con commentary on the proposition: The Patent Reform Act Means Progress
The current U.S. patent system is broken. It stifles innovation. Congress needs to pass the Patent Reform Act now. Pro or con?

On the pro-side, Senator Leahy wrote: Patent reform is about economic development. It is about American jobs, it is about innovation, and it is about consumers. We need a system that produces high-quality patents, limits counterproductive litigation over those patents, and makes the system more streamlined and efficient.

On the con-side, Congressman Rohrabacher wrote: Contrary to its title, the patent legislation now going through the Senate is not reform, but instead changes the law to benefit a narrow sector of the electronics industry, and trial lawyers. It does not maintain protection for the innovators and inventors but instead undermines their position against foreign and domestic infringers.

Neither Leahy nor Rohrabacher wrote about "copying" or "stealing." Curiously, Rohrabacher wrote about inventors but Leahy never mentioned inventors or invention.

Leahy mentioned "quality" twice. LBE has questioned the "absence of patent quality" arguments of Quillen and Webster, several times, including in the law review articles:

PATENT GRANT RATES AT THE UNITED STATES PATENT AND TRADEMARK OFFICE, 4 CHI.-KENT J. INTELL. PROP. 108

Comment on "PATENT GRANT RATES AT THE UNITED STATES PATENT AND TRADEMARK OFFICE", 4 CHI.-KENT J. INTELL. PROP. 186, which had the abstract:

In recent patent reform proposals made by the Federal Trade Commission [FTC] and the
National Academy of Sciences [NAS], there has been discussion that the United States
Patent and Trademark Office [USPTO] might have a high grant rate of patents compared
to rates of other industrialized countries, including Japan and European countries. This
discussion began with papers of Quillen and Webster that suggested that the grant rate
might be as high as 97% and more reasonably is at least 85%. Clarke suggested that the
issue rate is closer to 75%. While Quillen and Webster based grant rate on applications
"allowed," Clarke based his studies on applications "issued." In this paper, we use data
from the USPTO to show that the difference between "allowed" and "issued" applications
is not the reason for the divergence in grant rates. Instead, we suggest that Quillen and
Webster's elevated grant rates arise from a flawed numerical approach.

Perhaps Senator Leahy might take notice that the "patent quality" issue rests on shaky
underpinnings.

Full post as published by IPBiz on April 30, 2009 (boomark / email).