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« Court Report | Main | Classen Immunotherapies, Inc. v. Biogen IDEC (Fed. Cir. 2011) -- Judge Moore's Dissent »

September 05, 2011

Comments

Don,

I await the Gong of Doom.

For the life of me, I still can't figure out how this bill got as far as it did. We need patent reform, but this bill doesn't seem to do anything really helpful on the FRONT end, where the reform is needed. We get more bureacracy, more procedures, more complexity ... how is this supposed to help? It looks to me like this weakens the patent system, which is not good for entrepreneurial ventures, universities, etc. Does it really even help the big IT companies, who I understand were the primary lobbists? This will be a difficult time -- maybe someone can start a repeal movement.

A., look at who it helps:

First and foremost, the big tech companies. They don't really rely on patents for growth. The bother for them are the thickets of patents that have been created post State Street - either in the hands of trolls, or competitors (which is why some of the tech companies like to have a big patent portfolio of their own to sling at others). Since the courts have already given them much of what they wanted six years ago (no automatic injunctions, a lower threshold to show obviousness), they lobbied for and got things lower down on their wish list: another mechanism to try to invalidate patents before the PTO, and that will at the same time keep those same patent at bay before the courts; no more grace period for prior art, making it harder to get and defend patents; no allowance for pre-filing unauthorized disclosure by third parties (unlike most countries, which provide such protection); perpetual underfunding of the PTO, so that it takes longer to get patents out of the PTO and longer to deal with the various post-grant procedure that will now be available.

Second, the banks, who will now be immune from suit.

Third, it's not really going to adversely affect big pharma.

So you have two well-monied industries lobbying in favor and third that's not opposed. Add to that the fact that the bad effects of this legislation won't be felt for years - long after the senators and congressmen who passed it and the people who bought them are out of the picture - and you've got a done deal.

Oh, I forgot to mention: the IP trial lawyers, who will have guaranteed work for the next 20-30 years sorting this whole mess out. Which may explain why neither the AIPLA nor ABA-IPL came out against the legislation.

Senator Maria Cantwell may have said it best: "This is not a patent reform bill. This is a big corporation patent give away that tramples on the rights of small inventors." It's certainly a shame that Sen. Coburn's amendment didn't stand a chance.
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