By Donald Zuhn --
On Saturday, in response to an Op-Ed piece published in The New York Times two weeks ago ("Inventing a Better Patent System"), the Times published five letters, including one from patent reform's biggest proponent, Senator Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee ("A Fresh Look at Patents and Innovation"). In the original Op-Ed article, Robert Pozen (at right), the chairman of MFS Investment Management and a Harvard senior lecturer, wrote that while Congress has been debating patent reform legislation since 2005, "a fierce fight involving the high-tech and drug industries on a technical issue -- how to measure damages when a company violates a patent applying to one component of a larger product -- has kept it from reaching a vote." Mr. Pozen proposed that Congress "sidestep the damages question," and offered five ways in which existing statutes could be amended to "improve the processing of patents, reduce lawsuits and speed up the arrival of innovations on the market." Mr. Pozen's revisions include: (1) "allowing experts in the field to submit explanatory or critical comments on patent applications," (2) requiring that all patent applications be published 18 months after filing, (3) allowing a party challenging a patent in litigation to assert that the patent is invalid on any ground, including one that could have been raised during an earlier administrative proceeding, (4) providing "limited new immunity" to inventors who choose to protect their innovations as trade secrets (i.e., by expanding the prior user rights statute introduced in 1999 so that it encompasses more than just patented business methods), and (5) adopting a first-to-file system.
In a letter co-authored by Jeff Sessions (R-AL), the ranking member of the Senate Judicary Committee, Senator Leahy (at left) writes that "[w]e need to create the legal landscape that allows our innovators to flourish in the new economy, and we need to do it now." Stating that "Mr. Pozen is correct that Congress should not let the controversial issue of how damages are calculated bog down needed reforms," Senator Leahy notes that the Senate Judiciary Committee had managed to "broker a deal on damages that paved the way for success that will benefit all inventors and innovators" (see "Senate 'Patent Reform' Bill (S. 515) Voted out of Judiciary Committee"). Senator Leahy concludes the letter by reporting that Congress is in the process of "finalizing language" that would accomplish the three goals outlined in Mr. Pozen's article, adding that Congress "will make this happen, and America will invent its way back to prosperity."
While Senator Leahy has expressed optimism in Congress' ability to pass patent reform legislation, twelve Senators (all Republicans) wrote to Senate Majority Leader Harry Reid (D-NV) earlier this fall to express the opinion that the Senate bill (S. 515) "needs additional work before it is brought to the floor." While the twelve Senators believe the bill has been "greatly improved" since its introduction, especially with regard to the damages provision, the inclusion of "new and expanded mechanisms for the administrative re-examination of patents . . . are quite problematic." The Senators argue that the bill's post-grant review provisions would permit "serial challenges" to patents in the Patent Office and the courts, thereby threatening "to diminish the value and enforceability of U.S. patent rights at a time when America's economic recovery is dependent on the strength of U.S. innovation."
Signing the letter were Senators Sam Brownback (R-KS), Jim DeMint (R-SC), George Voinovich (R-OH), Thad Cochran (R-MS), Tom Coburn (R-OK), Chuck Grassley (R-IA), Roger Wicker (R-MS), Bob Corker (R-TN), Jim Inhofe (R-OK), John Barrasso (R-WY), Kit Bond (R-MO), and Judd Gregg (R-NH).