Court Says USPTO Can Change Patent Rules

bizwriter writes "Many large companies have been closely monitoring the Tafas v. Doll lawsuit over whether the US Patent and Trademark Office has the power to change the patent application process in significant ways, so as to restrict the scope of patents and the chances of getting one. The US Court of Appeals for the Federal Circuit has finally spoken, with a split court ruling that the USPTO does have the necessary authority. The case stems from a court challenge to four new rules the USPTO put in place in 2007. A number of tech companies including Microsoft, IBM, Oracle, Apple, and Intel have supported the rule changes, which would strengthen their positions and make it more difficult for small companies to create, protect, and bring to market disruptive technology. These companies didn't have it all their way, as the appeals court said that one of the four rules conflicts with existing patent law and sent the other three back to a lower court for further review. If the decision is sustained by a full review of all 12 Federal Circuit appeals judges, it could be a blow to biotech and pharmaceutical companies, which depend on being able to obtain large numbers of patents. Expect further appeals on this one, and for the only beneficiaries in the short run to be the lawyers."

Comments

This is a poor substitute

[gravesb]

for Congress re-writing the law in a comprehensive matter. If Congress does so, courts have to defer to the new laws. With the USPTO doing it, every rule change will be heavily scrutinized by courts, and it will take years of start and stop rule making to come up with an ad hoc, disjointed rule set. But at least someone is doing something.

Re:This is a poor substitute

[cvd6262]

True. My first reaction was like the GP: The Constitution grants congress the authority to protect intellectual property ("inventions"). I don't see the Patent Office mentioned anywhere therein. While it makes sense that an office would be creating for the application of congressional rules, granting that office the authority to change the rules is tantamount to dereliction of duty.

But then, like you, I looked back at the last dozen-or-so congresses and realized I don't have much faith in them upholding the Constitution either. Whether it's unlawful search and seizure or bills of attainder, I'm pretty sure most of our elected officials flunked high school government.

There is one difference between having congress set the rules and allowing the USPTO do it: We can vote out the congress.