The Unpredictable Politics of Patent Reform

According to John Markoff writing for the New York Times on January 13, 2008, two views of innovation are colliding in the U.S. patent reform debate that could upset our notions of innovation and entrepreneurship in ways that are hard to predict:

Large technology companies. . . are increasingly finding that the nation’s patent system has become a minefield, and they are looking for ways to limit the leverage of both small patent holders and patent “trolls,” or speculators who buy hundreds or thousands of patents. Rather than depending on patents, large information technology companies can increasingly rely on their market power and cross-licensing relationships. As a result, they are trying to rein in huge patent settlements . . .

Opposed to big tech is a small group of high-profile inventors . . . as well as venture capitalists and a growing array of smaller businesses that do not share the market power of the largest companies. They have joined forces with the pharmaceutical industry, which has traditionally relied on the protection of a strong patent system.

A draft of the Senate Judiciary Committee’s report on S. 1145 is available from the Intellectual Property Owners association which is in the delicate position of having membership from both camps. "IPO does not necessarily agree with the views expressed in the [NYT] article," they acknowledge.

Detailed information on the draft report is available from Patent Docs, which is also providing a discussion of selected sections of the bill over the next few days. until then, here is my prognostication on what everyone just might be able to agree upon from the seventeen sections in the draft report:

4. codify and clarify the standard for calculating reasonable royalty damage awards, as well as awards for willful infringement;
5. create a relatively efficient and inexpensive administrative system for resolution of patent validity issues before the USPTO;
7. provide for eventual publication of all applications and enhance the utility of third parties' submissions of relevant information regarding filed applications;
8. improve venue in patent cases and provides for appeals of claim construction orders when warranted;
11. authorize USPTO to require patent searches with explanations when a patent application is filed [if we could also minimize the potential estoppel effects];
12. codify and improve the doctrine of inequitable conduct;
13. give the Director of the USPTO discretion to accept late filings in certain instances;