Tech Companies Send Letter on Patent Reform to Secretary Locke

    By Donald Zuhn --

On Monday, a group of 56 companies sent a letter to Secretary of Commerce Gary Locke (below) urging the Secretary "to push for improvements" to the post-grant and inter partes examination provisions of patent reform legislation currently before Congress.  The Seattle PI's Microsoft blog published a copy of the letter on Wednesday in an article entitled "Tech cos. protest patent reform in letter to Locke."

In the letter, the group acknowledges that "some versions of the legislation have been improved this Congress," but asserts that "additional improvements are in order to ensure that the end product avoids serious unintended consequences."  According to the signatories, the "two most contentious issues in the patent reform debate relate to patent damages and the expansion of administrative challenges to patent validity."  With respect to the first issue, the letter commends the Senate for resolving the patent damages issue by introducing a "gatekeeper" provision, and urges Secretary Locke to support that approach (see "Senate Judiciary Committee Holds Hearing on Patent Reform" and "Senate 'Patent Reform' Bill (S. 515) Voted out of Judiciary Committee").  The group states that "[a]ny effort to go back to previous [damages] proposals will, in our view, endanger the entire patent reform effort."

With respect to the second issue, however, the group predicts that post-grant review and inter partes examination provisions in the current legislation "will have serious negative consequences which must be considered."  The letter notes that these provisions will put additional strain on an already burdened Patent Office, and contends that "[a]dding new obligations to the agency at this time seems extraordinarily unwise."  If the current provisions are passed into law, the group foresees "longer patent pendency and lower patent quality."  In addition, the signatories contend that such provisions would be "vulnerable to a high level of abuse" by "allow[ing] infringers to subject valid patents to lengthy and repeat challenges."  In support of its contentions, the group cites a November 2007 article co-authored by Yongshun Cheng (former Senior Judge and Deputy Presiding Judge of the Intellectual Property Division of Beijing High People's Court) and Li Lin, which concluded that the patent reform bill passed by the House in September 2007 "is friendlier to the infringers than to the patentees in general as it will make [U.S.] patent[s] less reliable, easier to be challenged and cheaper to be infringed" (see "Chinese IP Judge Discusses Implications of U.S. Patent Reform Bill and Two Congressmen Heed Warning").

The group contends that abuse of the post-grant review and inter partes examination provisions "will be harmful to American innovators who rely on strong patents," and therefore, urges Secretary Locke "to push for improvements to these provisions which will limit the ability of infringers to undermine the very system the legislation attempts to strengthen."

The 56 signatories to the letter include:  Abbott Medical Optics Inc.; Acclarent, Inc.; Acorn Cardiovascular, Inc.; Allergan Inc.; Applied Medical; ARCH Venture Partners; Ardian, Inc.; Asthmatx, Inc.; ATS Medical; Aware, Inc.; Biomerix Corporation; Calibra Medical; Carticept Medical, Inc.; Conceptus, Inc.; Corning Inc.; Cryptography Research, Inc.; Cummins-Allison; Cyberonics; Digimarc Corp.; Dolby Laboratories; Dynatronics Corp.; Elemé Medical Inc.; Evalve, Inc.; ExploraMed Development, LLC; Fallbrook Technologies Inc.; The Foundry, LLC; ForSight; ForSight VISION3; ForSight VISION4; GeneEx, Inc.; Ikaria Holdings, Inc.; InterDigital, Inc.; Intermolecular; Medigroup Inc.; Miramar Labs, Inc.; Mohr Davidow Ventures; Monsanto; Moximed, Inc.; NeoTract, Inc.; NeoVista, Inc.; Neuro Resource Group, Inc.; NeuroPace, Inc.; Nims, Inc.; Novasys Medical; Optimum Performance Solutions LLC; OsteoMed; Paracor Medical, Inc.; PolyRemedy, Inc.; Qualcomm Inc.; Streamline; Tessera; TherOx; Transonic Systems Inc.; Urovalve Inc.; U.S. Venture Partners; Venture Investors; The Vertical Group; Vibrynt, Inc.; and Viryd Technologies Inc.

Comments

[Hilary]

Legislation specifically targeting one particular group or one particular person is called a "bill of attainder" and it's expressly prohibited in our Constitution. If this is the sort of thing you support you are NOT a patriot.

[Dale B. Halling]

The present patent reform proposals even with the suggested modifications are not designed to spur innovation. We have spent the last decade weakening our patent laws, so that they favor technology thieves at the expense of innovators. This has significantly reduced the innovation in the US. Lack of innovation is a major reason the US economy is experiencing the worst recession since the Great Depression. For patent reforms that will spur innovation and the economy see http://hallingblog.com/2009/05/29/real-patent-reform/