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.
Kevin,
Well, the Phoenix once more arises from the ashes. S. 23 is no more palatable to me than was S. 515 and its predecessors. S. 23, like S. 515 and its predecessors, still basically fails to directly address the fundamental problem, which is the initial patent examination process in the PTO. Post-grant opposition doesn't do it, and the PTO doesn't have the resources to administrate post-grant oppositions effectively or timely, as evidenced by the tardiness in administering reexams. Calling S. 23 "reform" is simply a fraud, as others have said.
Posted by: EG | February 10, 2011 at 08:07 AM
There is no way that the USPTO can get itself on firm footing any time very soon, unless the legislature stops raiding its revenue. Michel is correct; putting an end to fee diversion is essential. All other patent reform issues pale in comparison.
http://www.aminn.org/patent-reform-threatens-weaken-patent-protection-and-undermine-u-s-technological-competitiveness
Posted by: patent litigation | February 15, 2011 at 12:21 AM
Kevin, I just wanted to let you know that the first sentence says "Patent Reform Act of 2010" instead of 2011, which I think would help make this great post easier to search for. Thanks!
Posted by: Corey | February 18, 2011 at 07:07 AM
We in the patent community are fortunate to have Michel as an advocate for these issues. I particularly appreciate his urging of the new IP Subcommittee to pay more heed to start-ups, rather than continuing Congress's inordinate focus on the needs of large corporations. Since some of our legislators are probably shareholders in some of those large corporations, however, I don't know how likely they are to change their ways.
Posted by: patent litigation | February 22, 2011 at 12:52 AM
I want t know does this legislation allow the non inventor to file for a patent that he or she did not invent. It is my ubderstanding that the patent will be awarded to the first to file not to the actual inventor. Can you clear this matter up for me?
Thank you
Edwin Clifton Catron
Posted by: edwin Clifton Catron | March 02, 2011 at 07:32 AM