PublishedSeptember 9, 2011

Tech Disappointed Patent Reform Bill Didn't Do More

The tech industry helped launch the push for patent reform six years ago, but it was not among those cheering the passage of the bill yesterday. Those applauding the loudest were those who originally fought patent reform, and instead managed to get the bill so watered down that it no longer promised real reforms.
The tech industry faces an onslaught of tens of thousands of patents per year, many of which are of dubious quality.  In the pharmaceutical industry, patents are few and may are clearly of value.  Players are few, patents are a useful source of business and technical knowledge.  One touted reform is the post-grant review which will allow patents to be challenged within 9 months after they are issued.   The limited window is fine for pharmaceuticals but it is not practical for high tech where there are so many patents and most will never be asserted.  Tech would rather see a proceeding that serves as a real alternative to the cost and delay of litigation.

Much has been made about how patents will now depend on who is first to file versus who is first to invent. While the rest of the world is first-to-file, it’s hard to anticipate how first to file will play out in the United States with our very aggressive patent culture.

It could be.  As our President CEO Ed Black told the Washington Post,  “Every time I’ve heard either a Republican or Democrat talking about jobs relating to the patent bill, I feel like I’m in ‘Alice in Wonderland… Unless they’re counting patent lawyer jobs, it’s very unlikely.”   If  first-to-file spurs a land rush to the PTO, the backlog – and the burden that too many half-baked patents places on industry – will get worse.  Fortunately, the House version that passed the Senate yesterday included a modest provision for prior user rights, which will alleviate some of the pressure to file quickly on everything.

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