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March 4, 2009

Cacophony by Design

[While other blogs cover the entrails, allow me to get to the heart of the beast.] Congress comprises a cabal of sole proprietorships - Senators and Representatives. The base wage is not great; private practice pays better. Oh, but the perks - tremendous ego-satisfying attention tied to the illusion of power, and the ability to soak lobbyists and the rarely enthused electorate of funds for a lavish lifestyle, plus fuel for the engine to turn the crank for another round in the rigged game called "election."

The ideal way to put out the money sponge is on proposed legislation that is both controversial and low impact. By low impact I mean off-the-radar of ordinary citizenry concerns. What's always highest on the radar to the voting public: taxes and services. The basic issues of how much is government robbing me, and what do I get for it. Pop out a zany bill on something that voters care about and you'll lose your rigging on that rigged game called election.

But patents - you mean inventions? Regulating lawyers? Who cares?!

Congress has actively wrestled with patent reform for at least four years now. They have had more than enough input from all quarters to know what various tradeoffs would be to the different vested interests. If Congress was interested in tweaking the patent system, they fairly well know where improvements could be made, who would be affected, and with some sense of impact that the changes would have. In other words, if they cared to nail it down, right here, right now, they could.

So what does 2009 bring? A very strange brew. The return of submarines (no publication requirement). Rock-hard first-to-file (which I like, and practically no one else does; thanks guys - here's a tip; oops, I fell for it, and so did everyone else forking over to fight it). Limiting venue. Ending fee diversion while letting the PTO set its own fees (i.e., reopening the PTO piggy bank at the expense of inventors). Reexamination anytime; do you want fries with that? And the coup de grace kiss of death to passage: damages apportionment. Even the words "damages apportionment" makes CAFC Chief Judge Michel pull his hair out.

Why would Congress, unified, with bipartisan support, and years of experience, propose such unwinnable legislation? You know why.

Here's what the legislators had to say about the package, an admitted work-in-progress. Sen. Leahy, Senate Judiciary Chair: "We all agree that more work needs to be done [to keep our coffers brimming.]" Rep. Conyers, House Judiciary Chair, stated he was looking forward to working with other legislators "to perfect this legislation to bring the reforms that are needed to ensure that [we all get a nice slice of the action during the legislative 'curing' process.]"

Notice how many co-sponsors the bill has. The Patent Reform Act is nothing but a bipartisan reconnection of the same gravy train they've been running for years.

Leahy: "For those who might say nothing has changed, I can attest that it has. Just look at the bill. We have listened to many of the concerns raised by stakeholders and have changed the legislative text accordingly." Keep those cards and crisp $ bills coming.

Yes, the mix is different, even more controversial than ever. On purpose. More reason for those playing "the sport of kings" to try to access legislators' ears by opening their wallets. Less prospect for passage. The joyous sound of the cacophony of cash. Ain't democracy grand.

Posted by Patent Hawk at March 4, 2009 4:29 PM | The Patent System