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March 16, 2008

Crossroads Ahead?

Patent holders have been hit hard the past couple of years. Declaratory judgment motions may now be filed at the drop of a hat, obliterating licensing negotiation without first suing, thus rendering litigation de rigueur.  Obzilla is still wrecking havoc in combo-Tokyo, whilst Thomas Jefferson spins in his grave. Willfulness isn't just willful anymore, it's "objectively reckless": a drunken rampage of infringement is required, or we was just boys being boys, ya' know. Now, the obscenely ironically-named Coalition for Patent Fairness (CPF) is howling at the moon about nearly completing its purchase of our rent-to-own Congress.

While Senator Leahy, palm greased, feverishly tweaking amendments for enhanced sex appeal, he's still dolling up a hag; guided by CPF, which, according to the Washington Post, "agreed on amendments that "constitute 90% of the bill's language"." It's an old campaign trick to toot and blow about getting on the good foot with the Big Mo: coquettely named Dan Sweet, CPF spokesthing: "It clears the way for final negotiations on the few remaining issues and builds critical momentum that will bring the bill to the Senate floor."

But, fingers crossed, it ain't so. Ron Riley, man with the plan behind the Professional Inventors Alliance, would just as soon spit in the eye of CPF as look at them: "This bill is in deep, deep trouble."

Overstatement abounds, but Riley has the better of it, hopefully. The legislation is wrong-headed, badly addressing issues that don't need it (e.g. damages), and ignoring issues that do (e.g. novelty). Sensible quarters exist to fight back, and will. The patent integrity brigade manned the ramparts to staunch PTO examination madness, and may be called upon soon to rise to answer the still-rancid bait put on the hook as "patent reform." Those wishing to eviscerate patent protection must be countered. The rabble rousers set the agenda, but they must not prevail.

Posted by Patent Hawk at March 16, 2008 5:43 PM | The Patent System


While I do agree that there are other issues that need to be addressed, I disagree that damages don't. So long as there are unethical companies out there laying claim to widely used processes as their own patented model, and simply using that as a platform to sue the rest of the world, then there's an imbalance that undermines the ability of true innovators to protect their intellectual property.

Posted by: db at March 17, 2008 8:47 PM


You seem to have folded two issues together. A patent claiming “widely used processes” should be unenforceable; that goes to the novelty aspect I mentioned in the entry. Under current law, non-novel patents can be enforced. It is a most serious problem that is not addressed in S. 1145. As to damages, the currently used Georgia-Pacific factors cover a wide array of circumstances. Under that guidance, a trivial patent would not merit much in the way of damages.

Posted by: Patent Hawk at March 17, 2008 9:54 PM