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August 21, 2006

Sailing Towards Patent Reform

The strongest push for patent reform came from large computer technology companies; as serial patent infringers, troubled at continually facing the prospect of injunctions granted by the CAFC nearly automatic like a dog. The solution worth bribing for - get Congress to pass a new law gutting patent enforcement. Then came the Supreme Court in eBay v. MercExchange, "case law" being the accurate euphemism, which took the wind out of the sails for legislative patent reform.

With "principles of equity" established, the lead card being "irreparable harm" now required to get an injunction for patent infringement, you've got to be standing up to a competitor in the same league to get an injunction these days. Think TiVo to EchoStar. Microsoft and Intel are sitting pretty - no need to worry about some pipsqueak patent troll stopping a product release or putting a brake on product revenue now.

Significant patent reform, of the ilk proposed by Rep. Smith of Texas last year, and Sen. Hatch of Utah this year, always seemed a bit far fetched - with the drug companies and computer technology companies at the opposite ends of the spectrum, one reliant upon strong patent enforcement, the other against. As Rep. Smith put it, "different business models." From politicians' perspectives, pissing off one major campaign contributor to pacify another was always a zero net sum game at best. Of course, Texas and Utah have much more computer tech than pharmaceutical, so money flows from appeasing as was done. But to get passage, to get so controversial a bill signed, fat chance. 2006, a campaign year, already shot; the slide towards or even into recession in 2007 - oil hitting $90+ a barrel, the growing civil war in Iraq, Israel's fight for survival; patent reform is going to be small, ignored, potatoes. 2008 - nothing but posturing from national politicians in this election year, patent reform hell and gone.

Rep. Issa's bill, kicking spare change to courts to better manage patent cases; that's patent reform you can bank on. Anything grander, you've got better odds with a lottery ticket.

Posted by Patent Hawk at August 21, 2006 12:02 AM | The Patent System


An anonymous attorney posted an interesting entry in Patently-O(http://patentlyo.com/patent/2006/08/patent_reform_b.html) on the landmine language in S. 3818, the Hatch-Leahy 2006 Patent Reform bill.

Contradicting the prognostication in the above entry, anonymous attorney posits, "Although there will be considerable further debate into the next term of Congress, passage of some form of major new patent legislation next year seems quite likely. Many of these patent reform proposals are not that controversial… Thus, there are highly likely to be a number of major changes in the present patent statute even if the most controversial provisions end up removed or amended in the final legislation."

Posted by: Patent Hawk at August 21, 2006 7:47 PM