Congress Clings to Familiar Patent Reform Issue 

As we approach the witching hour of mid-term elections, Congress begins to turn back to the business of law making. With so few legislative initiatives having meaningful bipartisan support, and a lame duck executive eager to appear — well, not so lame, patent reform offers political opportunity.

Something wicked this way comes.

Assuming some further reform bill can be passed into law (doesn’t really matter what), the administration secures some continued relevancy with the general public and the expected republican Senate can help out “main street” businesses fend off the dreaded “patent troll.”  As to whether or not further reform is actually needed ….wonkish details.

The America Invents Act of 2011 is only now bearing fruit as to providing a demonstrated alternative to nuisance litigation tactics. That is, the Patent Trial & Appeal Board (PTAB) has been labeled a death squad for their quick and cost effective manner in which they are willing to cancel patent claims. The ability to stop patent litigation in favor of lower cost patent office proceedings has never been stronger. In fact, most contingency litigation shops will no longer take on a “business method patent” case. But, we need to go even further?

While the rallying cry for further patent reform has attenuated in recent months due in large part to the efficacy of the AIA, the shrilly propoganda of the anti-patent crowd persists on Capitol Hill. The problem seems to be that Congress is either incapable from separating extremist views from reality….or is simply unwilling to let reality get in the way of a good political opportunity. (After all, the AIA was touted as a “jobs bill.”)

The president’s patent reform commentary of last week is quoted below (emphasis added):

When it comes to intellectual property protection, this is a trickier issue because you end up getting the tech community divided, people are on different sides of it. In some cases, the same company will be really concerned about protecting this aspect of their intellectual property, but feel free to want to stream somebody else’s intellectual property. And so trying to get the right balance is important.I think the basic concept is that you want to have sufficient IP, and — whether patents or copyrights — that you are continually encouraging and rewarding innovation and creativity. But you don’t want those structures so tight, in terms of protecting that intellectual property, that that ends up being actually an inhibitor to people getting good information, folks coming up with new uses for existing information.And then one of the biggest problems that we’ve been working on is how do we deal with these folks who basically are filing phony patents and are costing some of our best innovators tons of money in court; or if they don’t go to court, they end up having to pay them off even though they’re making a bogus claim just because it’s not worth it for you to incur all the litigation costs.So we’ve made some progress on patent reform. We continue to work with Congress to do more. But if we can maintain net neutrality, get the balance right on patents and copyrights, then I’m confident that we’re going to continue to — and, by the way, and then enforce intellectual property, because a lot of the theft of intellectual property that takes place isn’t happening here in the United States, it’s offshore.

In fairness, it is heartening to see an acknowledgement of progress, and a recognition of the fact that some innovators actually oppose further reform.  Let’s just hope any coming legislative effort is as measured as these comments.