By Kevin E. Noonan —

A number of groups have responded to the Senate Judiciary Committee vote to approve the Patent Reform Act of 2011 (see "Judiciary Committee Votes on Patent Reform Bill").

The Biotechnology Industry Organization (BIO), in a press release from President and CEO Jim Greenwood the day after the vote, praised Senators Leahy (D-VT), Grassley (R-IA), and "the bill's other sponsors," citing their "tireless efforts" to "carefully craft bipartisan, consensus-oriented patent reform legislation."  The trade group asserted its belief that the bill "will help strengthen and improve our nation's patent system for all users while preserving the incentives necessary to spur the creation of high-wage, high-value jobs and sustain America's global leadership in innovation."  The patent system has been important for innovation in biotechnology, which requires "a strong and predictable protection of intellectual property," which is provided by the nation's patent system.  Mr. Greenwood connected directly the benefits of the patent system to investment, saying that "[w]ithout strong and predictable patent protection, investors would shy away from investing hundreds of millions of dollars, over a decade or more, in high-risk biotechnology companies, and will simply put their money into projects or products that are less risky or offer a more immediate return but are of less value to society."
  He also reiterated his belief that passage of the Senate bill will "benefit all sectors of the U.S. economy," and he again pledged BIO's support and "commitment to work with the Chairman and members of the House and Senate as this legislation advances to ensure that the final bill remains true to these principles."

The Innovation Alliance also commented on the measure.  In a statement, the group praised the Committee leadership for their "efforts . . . to develop policies that drive economic growth while balancing the needs of America's diverse economy."  In particular, the Alliance "urge[d] Congress to provide the USPTO with all the resources it needs to reduce its backlog of over 700,000 patents," because this backlog "[t]rapped . . . the potential of creating hundreds of thousands if not millions of new jobs."  They cautioned against "any new programs [that] would divert some of USPTO's already overstretched resources, presumably referring to the post-grant opposition provisions of the bill (see "Here We Go Again").  Consistent with this concern, the Alliance "believes that policymakers should first address the serious and complex funding and administrative issues at the USPTO that gave rise to the backlog before creating any new programs at that already overburdened and understaffed agency."  Despite these reservations, the group "hope[s] to be a constructive force" in consideration of the bill, and "continuing to working with the Judiciary Committee leadership on legislation that allows all American companies to compete, innovate, and grow rather than tilt the economic playing field in favor of any company or industry."

The Coalition for 20th Century Patent Reform called the bill "a bipartisan effort [that] will strengthen the USPTO, provide jobs [and] encourage innovation."  Gary Griswold, speaking for the Coalition, said that the group was "very appreciative of the support" the bill was receiving.  "Our Coalition believes we can have bipartisan legislation that improves our patent system including providing the USPTO with the resources necessary to begin reducing its current backlog of patent applications and enhancing the quality of the patents that are granted."

As reported by Law360 (subscription required), Paul Michel (at left), former Chief Judge of the Court of Appeals for the Federal Circuit, told a D.C. bar association audience that he believes that any patent "reform" should be "highly selective" (as opposed, presumably, to the broad provisions of S. 23), "focusing on the fee, funding and backlog problems the U.S. Patent and Trademark Office is facing."  Judge Michel believes patent reform is important, calling it the "single most important issue facing the United States today" and echoes other voices in his belief that the patent system, and efforts to improve it are "key" to improving the nation's economy.  But it is a mistake, he said, to consider the law as "a simple set of statutes"; rather Judge Michel compared it to an ecosystem whose many interacting parts need to be tinkered with in balance," and that such reform is "impossible" unless the interactions between the components — "the USPTO, the courts, private advocates, the licensing process, entrepreneurs, inventors and research institutes" — are understood.  Judge Michel is not sanguine about Congress passing "comprehensive" patent reform legislation, and stated that "[t]he more comprehensive the bill, the less likely Congress will pass it and the more likely the balance of the overall system will be disrupted."  The problems that should be addressed, involving proper funding for the PTO, are problems that can only be addressed by Congress.  He also spoke out against "adding new burdens to the 'already dysfunctional' USPTO," and specifically an end to fee diversion, thereby permitting the Office to spend the user fees it collects.  He also said he thinks patent reform efforts need to be directed to reducing pendency times, citing global competitiveness.

The Generic Pharmaceutical Association (GPhA) also released a statement on the bill, saying that the group is "deeply concerned with language in the bill that would severely weaken the current inequitable conduct standard."  These provisions of the bill would "not only harm[] consumers needing affordable medicines, but at the same time . . . incentivize[] innovators to be less than honest when seeking patents."  This will "mak[e] it harder for companies to challenge dubious patents and bring affordable generic medicines to consumers," read the statement, adding that "[i]t is imperative that provisions in the legislation avoid any unintended consequences of delaying the availability of lower-cost prescription drugs by making it more difficult for generic companies to challenge unenforceable patents and thus unjustly extending monopolies for branded drugs."  The statement also points to the "$140 billion" that generic drugs have saved American consumers in 2010 alone.