By Donald Zuhn --
Last Friday, Herbert Wamsley, the Executive Director of the Intellectual Property Owners Association (IPO), sent out an "Urgent IPO Legislative Alert" to IPO members, urging them to contact their Senators to oppose the Applicant Quality Submission (AQS) provision of the Senate patent reform bill (S. 1145). According to the e-mail alert, the Senate bill "may be considered for a vote within the next few weeks," and therefore, the "time to speak out against this proposal" was growing short.
Calling the proposed changes in the Senate bill "the most significant in more than 50 years," the IPO noted that while it supports some provisions, it continues to seek amendments to other provisions. Among the provisions that the IPO would like to see amended is the AQS provision, which the IPO "flatly oppose[s]." The IPO contends that if the "little-understood" AQS provision were to be passed in its present form, it would:
(a) impose substantial new costs on applicants without meaningful benefits to the USPTO;
(b) create additional opportunities for inequitable conduct claims to be raised at trial;
(c) open up opportunities for litigation claims related to the adequacy of the mandatory search; and
(d) subject applicants to different standards by exempting micro-entities from the requirement.
Stating that "[w]e know of no group other than the USPTO that supports this proposal," the IPO mailing contends that "Senators have not heard enough arguments against the proposal."
While the IPO has voiced its opposition to certain provisions of the Senate bill before, and in fact, sent a letter opposing the provision to the Chairman of the Judiciary Committee last November (as noted in its e-mail alert and discussed in a previous Patent Docs report), the timing of last Friday's mailing was somewhat perplexing. In particular, why would the IPO wait until the end of March to rally the troops against the AQS provision? Especially when opponents of the provision (like the authors and contributors of Patent Docs) have been encouraging patent practitioners, assignees, and inventors to write their Senators for months. One troubling possibility is that the IPO has finally realized that its opposition has fallen on deaf ears, and that Senator Leahy intends to push ahead with a version of the bill retaining the AQS provision. Assuming that the IPO may know something that the rest of the patent community does not, it might be a good idea to heed the organization's warning and write your Senators -- soon.
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