Has the Supreme Court Made Patent Reform Legislation Unnecessary?

An anonymous reader writes: As Congress gears up again to seriously consider patent litigation abuse—starting with the introduction of H.R. 9 (the "Innovation Act") last month—opponents of reform are arguing that recent Supreme Court cases have addressed concerns. Give the decisions time to work their way through the system, they assert. A recent hearing on the subject before a U.S. House Judiciary Committee (HJC) Subcommittee shined some light on the matter. And, as HJC Chairman Bob Goodlatte, a long-time leader in Internet and intellectual property issues, put it succinctly in his opening remarks: "We've heard this before, and though I believe that the Court has taken several positive steps in the right direction, their decisions can't take the place of a clear, updated and modernized statute. In fact, many of the provisions in the Innovation Act do not necessarily lend themselves to being solved by case law, but by actual law—Congressional legislation."

Comments

I am Faraday

[invictusvoyd]

you owe me 10000000 tiriion dollars for the electric motor .. assholes

Legislation?

[garyisabusyguy]

What I relief, I expect Boehner and McConnell to pull their conservative troops together and whip this up in a jiffy...

well?

Re:Legislation?

[Austerity Empowers]

The "We Look For Things To Make Us Stop" Act

Re:Legislation?

[davester666]

"Making America Strong Through Eradicating Ridiculous, Baseless and Accusing Trolling Entities"

Re:Legislation?

[theshowmecanuck]

Given that the anti-reform assholes are yelling that patent reform is no longer necessary (because of the court decisions) it should be very apparent that reform is more necessary than ever. i.e. They wouldn't be saying it isn't needed if it won't make a difference.

Re:Legislation?

[Merk42]

I think you mean "...Through Uprooting..."

Necissary, not sufficient.

[pavon]

Granted, the biggest problem with the patent system has been that the criteria for patentability has been so loose, and the recent Supreme Court rulings will certainly do more to fix that root cause than the recent patent reform bills. Hopefully going forward these new rulings will improve the quality of patents approved and upheld in court, which is by far the single most important reform needed in the long run.

But in the meanwhile there are more than 20 years of bad patents that have been granted, and the costs of defending against a patent lawsuit is still far greater than the cost of settling. We need to make it less expensive to challenge existing patents if we don't want them to continue to be a burden for the next 20+ years. That is exactly what the reform bills were about. They were designed to be complementary to the Supreme Court rulings, addressing a different parts of the problem.

Re:Necissary, not sufficient.

[BarbaraHudson]

Sounds good in theory, but the deep pockets can still push an inventor into bankruptcy by challenging a patent. This doesn't protect the little guy at all.

Re:Necissary, not sufficient.

[Theaetetus]

You're not even a little bit fearful that "patent reform" isn't doublespeak for bringing patents more inline with copyrights or some such nonsense?

I'm not. Patent term has only ever been extended once, to comply with an international treaty (the Paris Convention on Intellectual Property), and even then, it was a negligible change (20 years from filing, given an average 3 year delay from filing to issuance vs. 17 years from issuance). Compare that to copyright getting extended every time someone blinks.

There's a simple reason for this. The people pushing for longer copyright terms are the publishers who want to commercially exploit their property for as long as possible, and they've got tons of money; the people pushing for shorter copyright terms are... the public. And we have no lobbying money. So, it's an easy guess as to which one wins.

But patent is different - Apple wants their patents to last a long time, but they want Microsoft's to last a short term, and vice versa. Unlike copyright, where you don't really get Sony Pictures wanting to make a Paramount screenplay without paying royalties, you actually do have tons of large companies wanting to use each other's patents. No one wants longer terms, because all of their competitors have patents they want to use. So, there's no pile of lobbying money pushing on just one side of that equation, and patent terms don't get extended.

Disclaimer: I am a patent attorney. But the above should make sense regardless of your opinion of my work.

Re:Necissary, not sufficient.

[wisnoskij]

OK, but then patent reform was never suggested by anyone to be Entire Legal System Reform. It would be impossible to change that fact without completely remaking the legal system.

Re:Necissary, not sufficient.

[ColdWetDog]

Enlightened self interested wins every time.

Re:Necissary, not sufficient.

[quintessencesluglord]

Not that I doubt specifically, but here's my problem:

If what you say is true, we wouldn't have the problems with the patent system that we have now. It should be mostly self-regulatory, with less trivialness since companies have an interest in each other's patents. This is clearly not the case, and as you can point to Apple or Microsoft, I can point to drug and agricultural companies that effectively pursue perpetual patents. Not all patents are created equal, and if you hold the keys to a cash cow, or a DNA sequence, that alone is worth more than any benefit from cross licensing. Prilosec earned over a billion dollars yearly while its patent was active. Now it earns about $300 million. And that's just one drug.

Not to mention you already stated patent has only been extended through treaty, and yet here we are with another treaty in the wings which no one wants to disclose the terms of, and would all but put any patent reform out of the reach of the courts or congress.

That should give everyone a moment of pause.

Scylla and Charbdis

[rmdingler]

I'm no Doomsayer, but which group of really old people should I be rooting for to straighten out this proprietary nightmare: the Congress or the Supreme Court?

Re:Scylla and Charbdis

[DoofusOfDeath]

I'm no Doomsayer, but which group of really old people should I be rooting for to straighten out this proprietary nightmare: the Congress or the Supreme Court?

I suspect the Supreme Court is a bit less corrupt.

Re:Scylla and Charbdis

[sumdumass]

Please enlighten us on why they are more ans not les corrupt than congres. I have read their recent decisions and think the GP is correct. SCOTUS is less corrupt than congres in appearance if not practice.

But here is a hibt, wherher you like or dislike a decision or fail to grasp the reasoning does not mean corruption.

Here is the text

[phantomfive]

Here is the text of the law in question. Parts that interest me (ianalbirp):

1) Formalization of 'Covenant Not to Sue.'
2) Makes it harder to sue the customer when the manufacturer commits a patent violation.
3) Commissions various interesting studies on the effectiveness (or on the negative effects) of patents.

There might be more but I only have so much tolerance for reading legalese......

Re:Here is the text

[Anonymous Coward]

None of those are the objectional points of the "reform" bill.

The main complaint about the patent reform bill is that it institutes a "loser pays" system that will make it impossible for small inventors to bring suit against large corporations. The AIA (the last reform bill) already substantially increased the cost that individual inventors had to pay to be able to sue large corporations. Because of the new IPR and CBM petitions, a patent holder needs to have several hundred thousand dollars in cash on hand to be able to pay attorneys to bring suit against a large corporation. This assumes that his litigation attorneys are working on contingency basis, and that he will use that cash to pay his patent lawyers to defend the patent in the inevitable IPR or CBM proceeding (which is almost never covered under a contingency contract).

If the Goodette bill is passed, the inventor will also have to risk that he will have to pay the cost of the corporation's lawyers when he brings suit. This will require him to pony up several hundred for the CBM, and then be ready to pay several million dollars for the corporation's attorney fees if he looses. Of course, if the inventor must sue multiple defendants, then he exponentially increases his risk, as a loss on validity in any one suit will render the patent invalid across all of the suits (and open up loser pays to multiple defendants).

If you think that patents are important, you need to ask yourself how much it should cost for a patent holder to be able to enforce his patents. If you think that an inventor needs at least 2-3 million dollars to do it (even if he can get contingency lawyers), then the current reform is for you.

Re:Here is the text

[abhi_beckert]

The main complaint about the patent reform bill is that it institutes a "loser pays" system that will make it impossible for small inventors to bring suit against large corporations. The AIA (the last reform bill) already substantially increased the cost that individual inventors had to pay to be able to sue large corporations.

What "small inventors"?

The cost to file a patent is already so high that small inventors do not ever patent anything. It's a total waste of time to try and protect them because they are a class of people who simply do not exist at all.

A far bigger problem is when small companies, say ones with five or six employees, are sued for patent infringement. They can't afford to defend themselves even if they don't infringe on the patent. If you could rack up millions of dollars defending yourself and have the patent holder be forced to pay your legal fees if the court rules that you did not infringe on their patent, then that would be quite an improvement. Then lawyers would be willing to work pro bono in patent defence lawsuits.

Journalistic Tip

[ckatko]

Any time a headline ends with a question mark, the answer is a resounding "No."