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April 2, 2009


Sen. Orin Hatch (R-UT), co-sponsor of the proposed Senate Patent Act, before walking out on the Executive Meeting of the Judiciary Committee meeting in a hissy fit: "My primary purpose for doing this bill was to improve patent quality and limit unnecessary and unproductive litigation costs. I do not believe the bill, in its current form, accomplishes those goals." Sen. Leahy (D-VT), Committee chair, attempted to cajole him from leaving, by sympathizing that he too would prefer gutting damages for patent infringement, which the watered-down version before the Committee lacked.

Before he walked out, Hatch let loose his facile grip on the issues, revealing his lack of understanding about the basics of patent law. Seemingly referring to inequitable conduct not being revised to his satisfaction, Hatch pooted: "you can still sue for fraud if you want to, and you can still fix your patent and narrow it before litigation." Inequitable conduct is not fraud, and it's a defense, not something one can sue for. Hatch is "sick and tired of non-innovators who use inequitable conduct provisions and then walk away as infringers." While inequitable conduct is a frequent charge, its proof requires meeting a high bar.

Sen. Specter (R-PA) wanted to wait and not vote the bill out of Committee until Senator Kyl (R-AZ) had a chance to submit amendments on post-grant inquisition. Kyl said he realizes the amendment wasn't likely to be adopted, because the patent office is against overwhelming itself further. Kyl wants Leahy to call the PTO and ask why they think that allowing post-grant inquisitions at the drop of a hat would be burdensome.

The unsatisfactory bill passed the Committee. Last year, the House got their version of patent reform passed while the Senate sat on its thumbs. This year, it's the Senate's turn for futile gesture.

Though the bill passed the Committee 15-4, the meeting was somewhat chaotic, emphasizing the circus atmosphere of clowns at work.

Leahy, who looks ancient, but appears to have the mental age of a four-year-old, got upset because he wanted to the bill passed right then, today. He got his wish. Don't applaud, just throw more money.

There's the point. With the bill before the Senate, it looks more frightfully like something might pass. The lobbyists are thus whipped into a frenzy of splashing money out for influence. There's Leahy's game plan - give the appearance of forward progress by moving the jalopy along, even if it has to be shoved.

The disharmony is apparent. To the jaundiced eye, this year looks a retread of previous years - noises and movement to draw lobbyist lucre, with not much prospect of enactment.

But looks may prove deceiving, considering that the most contentious issue, damages, seems so diluted as to be innocuous. The trend seems to be codifying case law. In the case of damages, the Georgia-Pacific factors. With willfulness, Seagate. Forum shopping, TS Tech. In a hocus-pocus of nothing seeming something, that sort of law could be enacted.

But don't bet on it. Once a new patent act is passed, all that lobbyist interest fades for years, another cash cow let wandering afield. Better to milk it for all its worth.

Pictured: Sen. Leahy whispering in the ear of Sen. Specter.

More: Reuters; IPWatchdog (Gene Quinn)

Posted by Patent Hawk at April 2, 2009 2:00 PM | The Patent System


"Arlen, we've GOT to keep this well from running dry, the economy the way it is and all."

"I hear you, Pat. What's the plan?"

Posted by: niRPa at April 3, 2009 2:36 AM

... and I should add that I heard yesterday that both the Financial Services Roundtable (the non-innovating money-changers who control the economy) and the non-innovating Coalition for Patent Fairness are none too happy with the present patent reform bill, and may end up opposing it.


Posted by: niRPa at April 3, 2009 3:20 AM

tar and feathers for those old jokers in Congress

The Founding Fathers are rolling over in their graves

Posted by: angry dude at April 3, 2009 6:43 AM

Seems more like "politics as usual" in how this oxymoronic "patent law reform" legislation was handled. Other than the post-grant opposition (which the USPTO hasn't got the ability or resources to handle) and interlocutory appeals (expect the Federal Circuit to reduce such appeals to rarely approved, if you believe the Chief Judge's opposition) provisions, we can probably live with modified S. 515, although it's hardly "reform" in any sense of the word. Ironically, I also understand that the big supporter of this oxymoronic bill, the oxymoronic Coalition for Patent Fairness, may oppose this modified bill (probably because the damages provisions was so watered down). Care for any sausage?

Posted by: EG at April 3, 2009 7:14 AM

Sen. Hatch was one of the four voting against the bill.

Posted by: Patent Hawk at April 3, 2009 10:37 AM

And these are the people who are running the country. Out of touch for sure and with clearly more important things to think about than patent law, which is why hopefully this kind of garbage will never pass a full vote. Cripes, if Pelosi has any more face lifts, her eye are going to fall out. She was recently quoted as saying health care should be a right of all Americans and not a privilege, I wonder if she thinks that the endless nips and tucks that she has privileged herself with are also the right of every American.

Posted by: Just sayin' at April 3, 2009 9:30 PM

I actually hope this passes because I see both (i) forced apportioned damages as a 'death sentence' for the value of patents; and (ii) 'quality submissions' without Inequitable Conduct reform as ANOTHER death sentence for patents.
Thankfully, these have both been removed.
The current bill is a piece of junk but it would take off the pressure (backed by a lot of $$$$) to pass patent reform with the two deadly aforementioned provisions.
Legislation (unlike case law) is VERY VERY difficult to reverse.
The anti-patent atmosphere hit a peak about 2 years ago. This bill will devalue patents by some but not by a lot.
If this doesnt pass Google/M$/Oracle/Cisco are NOT going to simply go away, and sooner or later they may buy enough senators to pass damages apportionment or "quality" submissions (without IE reform).

Posted by: anonymousAgent at April 5, 2009 2:31 AM