America Invents Act to President’s Desk Next?

Around 5:45 on Thursday, H.R. 1249, as modified by a Manager’s Amendment, was passed by the House (303 to 116). Fifteen separate amendments were offered, (previously discussed here) most of which were not adopted.

As H.R. 1249 substantively differs from the text of S.23, typically a Senate conference would be conducted to reconcile the differences. However, as the major difference is the compromise relating to fee diversion, rumored to be blessed by the Senate, it is quite possible that the Senate may pass on the opportunity to reconsider the bill and summarily adopt H.R. 1249.

Patent Reform by July, could it be?

Bill Heads to House Vote Today Without Strict Fee Diversion Provision

As expected, the proposed prohibition against USPTO fee diversion has been excised from H.R. 1249. In a compromise proposal reached yesterday, collected fees that exceed USPTO appropriations for a given year will be maintained in a “Patent & Trademark Fee Reserve Fund.” The excess fees would be subject to return to the agency, upon congressional approval. Unfortunately, the fees maintained in this fund would almost certainly be diverted, at least in some form, by future budget amendments.

The latest manager’s amendment can be found (here) with the fee diversion compromise at Sec. 22.  A statement of the Obama Administration’s concern on the compromise of Sec. 22  may be found (here). You can find a complete Bill summary, as well as rebuttal to the contitutionality arguments concocted by opponents. (here)

USPTO Director Kappos issued the following statement today:

I want to congratulate Judiciary Chairman Smith, Subcommittee Chairman Goodlatte and Ranking Member Watt as well as the House Leadership for their stewardship in ushering the Leahy-Smith America Invents Act onto the floor for consideration before the full House. Enactment of bi-partisan patent reform legislation would be a major step forward in transforming our patent system and improving the Nation’s competitiveness and promoting economic growth.  As the Statement of Administration Policy issued today indicates, the USPTO will need full access to all of its fees in order to carry out the mandates of this legislation effectively and perform its core mission to support America’s inventors. I look forward to continuing to work with Congress on this important matter as the bill moves toward final passage.

Floor debate of H.R. 1249 will begin at 11:30AM today, a list of amendments to be considered is found (here), the most significant being the exclusion of the firt-to-file provisions, and/or making its implementation contingent upon further study

Interval Licensing Litigation Stayed Pending Patent Reexamination

Former Microsoft founder Paul Allen has made headlines recently by asserting the patents of his company, Interval Licensing against the 11 industry stalwarts (Apple, Google, Facebook, NetFlix, AOL and others). The case was initially stalled when the court found the opening complaint lacking in detail, but this formality was quickly corrected. Last week, however, a much more significant roadblock was placed in the path of Mr. Allen’s litigation endeavor—-patent reexamination. A judge in the Western District of Washington has halted the proceedings against all 11 defendants pending patent reexamination.

As most readers of this blog realize, obtaining a stay of an ongoing district court infringement action is one of the many benefits of patent reexamination parallel with litigation. Defendants that are able to obtain a stay pending patent reexamination can avoid cost prohibitive litigation discovery during the course of the USPTO proceeding, which can be rather lengthy. 

In addition to cost savings, there are also tactical advantages to the USPTO proceeding. Unlike the courts, in patent reexamination, the USPTO does not recognize the presumption of validity. Moreover, the USPTO does not require the “clear and convincing” standard to demonstrate invalidity in patent reexamination, but employs the more liberal ”preponderance of the evidence” standard. As such, defendants can enhance the strength of their invalidity defense via patent reexamination. So, in essence, Interval Licensing is now facing a new challenge that must be overcome before the litigation resumes, and at much longer odds.

In considering if Interval Licensing’s interests would be prejudiced by a delay in the litigation of a length necessary to reexamine the patents at issue, the court  emphasized the fact that Interval licensing is a holding company (known as a patent troll to some).

The full decision may be found (here). In deciding whether Interval Licensing would be prejudiced by a stay, the court explained:

[T]he Court is not able to find undue prejudice to Interval Licensing by granting the stay. Interval Licensing, a holding company, does not compete with Defendants and there is no danger it will lose customers, market share, or other intangible benefits. Rather, it can likely be compensated for damages suffered even if a stay is issued. The Court also does not believe that the stay will produce a clear tactical disadvantage to Interval Licensing.

As pointed out in past posts, stays are disfavored between direct competitors, but courts are increasingly willing to halt patent infringement suits that are initiated by those (trolls) that are not actively competing in the marketplace. Silicon Valley may now enjoy a lengthy reprieve as the battle shifts to the USPTO.

This case was brought to my attention by the great Docket Navigator.

When Inter Partes Patent Reexamination Becomes One Sided

As discussed over the past few months, the USPTO is considering various proposals in an attempt to streamline patent reexamination. The proposals of the speakers at the June 1 public meeting, as well as the webcast, are found (here).

Throughout the month of June, I have explained my own proposals to accelerate/improve patent reexamination. Most recently, I explained an alternative that the USPTO might consider to encourage Patentee cooperation with the Pilot Program to Waive a Patent Owner Statement in Ex Parte Patent Reexamination.

Earlier this month, I explained the presentation I gave at the USPTO public meeting of  June 1st for accelerating petition processing. As most practitioners realize there is a petition crisis at the USPTO that is a direct result of the increased use of inter partes patent reexamination. In my previous proposal on this topic I explained that certain, procedural disputes are commonly petitioned in inter partes patent reexamination. For example, petitions relating to  page limits, petitions to strike filings, etc. The Office would be best served disposing of these petitions by involving an ombudsman that is available by telephone, akin to interference paralegals.

In addition to processing such seemingly routine petitions in a different manner, the Office should also consider eliminating situations that generate such petitions as a matter of course. For example, it is quite common for a Requester of an ongoing inter partes patent reexamination to stop participating in the proceeding. In such situations, typically, the Requester settles their dispute with the Patent Holder in a parallel litigation. Upon settlement, the Requester agrees to discontinue their participation in the patent reexamination, often times filing a statement memorializing this agreement in the reexamination. Thereafter, the Patentee will petition the Office to waive the requirements of 37 C.F.R. § 1.955 to allow for an interview in the reexamination. The petition is necessary as, even though the reexamination is now ex parte to all intents and purposes, the Office maintains the proceeding as if the requester were still participating.

As long as the petition for interview presents a detailed agenda on how the proposed interview will accelerate prosecution, it is granted. However a second petition is required for any subsequent meeting. Moreover, even if all claims are later confirmed/allowed a Right of Appeal Notice (RAN) is still issued. This makes no sense as the Patentee is not appealing a favorable conclusion, and there is no Requester involved in the proceeding any longer to dispute such a result. As can be appreciated, these practices are unnecessary, help drive unnecessary petition filings, and ultimately aggravate inter partes patent reexamination pendency.

A more sensible solution would allow the filing of a statement that waives the Requesters rights to further participation, upon which, the Office would allow interviews as a matter of right. Further, the filing of such a statement would accelerate appeal processing by avoiding RAN and cross appeal docketing practices.

As a reminder, written comments to the current patent reexamination streamlining proposals are due to the USPTO next week, June 29th.

Oath Addressing Only New Claims Acceptable

Last week the BPAI considered an application for patent reissue (U.S. Patent 5,819,034) Ex Parte Kuiacose Joseph et al. The appeal considered the propriety of an oath in a patent reissue that did not identify a mistake in the original claims. A similar question was recently explored at the CAFC (In re Tanaka) relative to new, dependent claims.

In the application for patent reissue the original claims were cancelled in favor of new claims directed to a different invention. The cancelled, original claims were presented in a divisional patent application (now suspended pending the reissue). The Examiner found the reissue oath, which was directed to new method claims, defective since it did not identify an error in the original claims. The originally issued claims were directed to a system.

In other words, consistent with the USPTO’s Tanaka argument, the Examiner took the position that the oath was defective as not identifying any defect in the issued patent. The BPAI disagreed with the examiner.

With respect to the oath, the Applicant explained the ‘034 Patent to be wholly or partly invalid:

…by reason of my claiming less than I had the right to claim in the patent. Specifically, the patent discloses a method and system that, stated generally, facilitate the presenting of data about an item being offered for sale to a user,and in response to a single action by the user, generating an order for the item. This invention is distinct from the invention claimed in the original patent; and is not in any way claimed in the patent. (emphasis added)

As stated in the oath, the disclosure was directed to a system and method, and the new claims (this invention) included the specific language noted. The original claims were all system claims.

The examiner found this language lacking, explaining:

[t]his statement of error is not sufficient because it does not identify a single word, phrase, or expression in the specification or in an original claim(s) 1-9, and how it renders the original patent wholly or partly inoperative or invalid. The statement filed is no better than saying in the reissue declaration that this ‘application is being filed to correct errors in the patent which may be noted from the change made by adding new claim 10.’, see MPEP 1414, II, C.

In reversing the examiner, the Board stated:

We find the phrase “facilitate the presenting of data about an item being offered for sale to a user, and in response to a single action by the user, generating an order for the item” describing what the original claims omitted has sufficient specificity.

Interestingly, the Board did not reference the Tanaka decision. While the original claims were cancelled here (unlike Tanaka), the decision makes clear that the original claims were not surrendered. The originally issued claims remain pending in another proceeding. Prior to Tanaka, the examiner would have likely been affirmed.

This decision, and Tanaka, make clear that presentation of claim errors need not reference original claims at all.  Moreover, as I have explained in the past, comparison between originally issued claims and new claim language in patent reissue should be avoided by Patentees.

Significant Amendments Targeted for H.R. 1249

Hold up, wait a minute.

The America Invents Act has been seemingly remixed and re-released as the “Leahy-Smith America Invents Act.” All Republicans, throw your hands up, all Democrats, throw your hands up…

With the House now moving to floor debate of H.R. 1249, amendment proposals have come flying from all directions. Not surprisingly, some of the proposals aim to strike PTO fee setting authority, the end of fee diversion, as well as the first to file provision. Should these amendments be adopted, the bill would be killed. Another amendment, introduced by John Conyers (D-MI) seeks to strike everything but PTO funding (including the Detroit Office!). 

Further amendments attempt to address emerging criticisms of the bill. For example, a severability provision is added should any provision fall on constitutionality challenges. As a reminder first inventor to to file is deemed unconstitutional by some, and the retroactive effect of the Transitional Business Method Review has been challenged as in violations of the Takings Clause.

So, what changes are proposed for reexamination and post grant?

As has been the case throughout the recent iterations, post grant review and inter partes review are largely left unchanged aside from minor tweaking.  Of course, there are some amendments proposed, like going back to a 9 month window (1 year in previous version of H.R. 1249 for post grant review) (Lamar Smith R-TX).  Another proposal seeks to adopt a clear and convincing standard for proving invalidity in post grant review (Lee Terry R-NE). This would be a major change, but seems unlikely to be adopted.

However my new favorite proposal is by Dana Rohrabacher (R-CA).  Mr. Rohrabacher has proposed that any U.S citizen, or small entity that is a U.S. Company (less than 100 employees) should be exempted from post grant review or “reexamination.”  Patent Trolls Rejoice!   

For a list of proposed amendments in plain English, click (here).  Formal amendment proposals are found (here).

 

Therasense Decision to Influence the Choice Between Ex Parte vs. Inter Partes Patent Reexamination?

On May 25, 2011, the Federal Circuit issued its the long awaited en banc decision in Therasense, Inc. v. Becton, Dickinson & Co. 2008-1511.  The majority opinion authored by Chief Judge Randall Rader established a single new standard for determining materiality in inequitable conduct cases. This new “but for” standard defines material information as any non-cumulative information which, had it been disclosed prior to patent issuance, would have prevented the patent from issuing.

Unlike the prior standard used in determining materiality of undisclosed information, the new standard assesses materiality on a preponderance of evidence burden of proof standard giving the patent claims their broadest reasonable construction in light of and consistent with the supporting patent specification. Presumably, because the majority opinion rejected the applicability of the USPTO’s materiality standard under 37 CFR § 1.56(b)(1), the new “but for” standard will take into account any rebuttable evidence that is proffered by the patent owner such as antedating non-statutory bar prior art and objective indicia of non-obviousness, irrespective of the fact that none of such rebuttal evidence was ever submitted to the USPTO for consideration prior to patent issuance.

A consequence of the new “but for” test for materiality is that, at least for those filings that include art forming the basis of an inequitable conduct defense to infringement, inter partes patent reexamination is now the more attractive option.

With the “important to a reasonable examiner” standard and the “prima facie unpatentable” standards eliminated in Therasense as materiality standards for proving inequitable conduct, ex parte reexamination becomes less attractive for use in corroborating an inequitable conduct defense. Previously the reasonable examiner standard was at least arguably evidenced upon a mere decision to reexamine/reject claims in either form of patent reexamination. However, Post-Therasense, the new goal is for the reexamined patent claims to be canceled or amended based on the undisclosed patents and printed publications, such would be dispositive that the original claims should not have issued in their original form.

Because the new “but for” standard allows the patent owner to submit rebuttable evidence, the third party requester needs to be cognizant that patents and printed publications that qualify as prior art under 35 U.S.C. §§ 102(a) or (e) may be vulnerable to antedating by the patent owner. Moreover, if the bases for the rejections are solely under 35 U.S.C. § 103, the patent owner may be able to rebut the prima facie case of obviousness through proof of objective indicia of non-obviousness, such as proof of unexpected results.

Particularly, in inter partes reexamination where the third party requester may participate at every stage of the proceedings, including independent rights to appeal the BPAI and Federal Circuit, the third party is provided with the most effective tool to prove materiality. USPTO statistics (here) demonstrate that challengers are far more successful in forcing claim amendment/cancellation in an inter partes patent reexamination.

Akin to the new “but for” materiality standard of the district courts, in patent reexamination, claims are also a broadest reasonable construction. Likewise, prior art is also evaluated under a preponderance of evidence standard in patent reexamination. See for example, MPEP §§ 2258(I)(G) and 2658(I).

Where the third party requester has a strong case of unpatentability of original patent claims based undisclosed prior patents and printed publications previously known by the patent owner, reexamination, preferably inter partes reexamination may be a tool of choice, if filed promptly, to prove the “but for” test for materiality Post-Therasense.

USPTO Proposal Forces Patentee Cooperation in Violation of Statute?

Last Monday, I proposed managing petition practice in inter partes patent reexamination based on the patent interference model already in place. As a reminder, this proposal is responsive to the proposed collection of working concepts and initiatives published in the Federal Register for the purpose of streamlining patent reexamination. (a copy of the Federal Register Notice is found here) I discussed this proposal at the USPTO, along with other speakers on June 1, 2011. (webcast and other materials here)

As I mentioned in last week’s post, the USPTO proposal to modify and make permanent the Pilot Program for Waiving the Patent Owner Statement was not discussed in detail during the meeting. However, this proposal, at least from feedback I have received, is one of the more controversial.

In a nutshell, the USPTO is proposing to modify the existing Pilot Program by: (1) Making the Pilot Program permanent; and (2) Issuing a first “provisional” first action together with the Order of reexamination for those Patentees that do not agree to waiver. With respect to the “provisional” first action, unless a Patentee files a Statement overcoming the rejections in the Provisional Action, the next action would issued as a Final Rejection; therein lies the controversy.

This proposal would force efficiency at the cost of Patentee rights. Moreover, it is unikely that such a proposal could be reconciled with the patent reexamination statutes.

Statutory Roadblock (35 U.S.C. § 305)

After the times for filing the statement and reply provided for by section 304 of this title have expired, reexamination will be conducted according to the procedures established for initial examination under the provisions of sections 132 and 133 of this title. In any reexamination proceeding under this chapter, the patent owner will be permitted to propose any amendment to his patent and a new claim or claims thereto, in order to distinguish the invention as claimed from the prior art cited under the provisions of section 301of this title, or in response to a decision adverse to the patentability of a claim of a patent. (emphasis added)

Under the current proposal, reexamination would effectively begin prior to the expiration of the times for filing a Statement and Reply. A Patentee that refuses to waive the Statement, and does not file a Statement in response to the provisional action, would lose the right to propose an amendment, add new claims, or introduce evidence by virtue of the subsequent Final Action (governed by 37 C.F.R. § 1.116). 

Statutory roadblock aside, this proposal is all stick and no carrot.

So, why is the Office seeking brute force solutions to urge cooperation with this program?

USPTO Perspective

The USPTO’s interest in urging compliance with the waiver this program is understandable– cooperation by Patentees would help decrease overall pendency of ex parte patent reexamination. Further, this increase in efficiency would not expend any significant Office resources. As explained in the Streamline Proposals Notice, historically, 10% of Patent Owners in ex parte patent reexamination ultimately file a Statement.  As can be appreciated, once an Order is granted, the USPTO provides a two month period (37 CFR § 1.530) to receive a Statement that is not filed in 90% of cases. For this reason, the time to a first action on the merits (FAOM) in ex parte patent reexamination is slower relative to inter partes reexamination. (inter partes reexamination does not provide for a Patent Owner Statement so a first action is typically issued together with the Order)

As I pointed out previously, the Pilot Program has had very disappointing results. Preliminary results indicate that (31%) of Patentees agree to waive the right to file a Statement.  This is a far cry from the 90% of Patentees the USPTO would expect to participate based on the historical filings. 

In finding a solution to the lack of cooperation, one must first appreciate the problem.

Patentee Perspective

As I pointed out when the Pilot Program was first announced, Patentees typically prefer to utilize the time between initial determination and first action to consider their response strategy, line up expert witnesses and hire reexamination counsel.  Another factor that complicates cooperation with the program is that patents pursued in ex parte reexamination tend to be older (i.e., not eligible for inter partes reexamination). In such patents, it is rare that the same law firm is retained to serve as reexamination counsel. So, the Office is usually calling the wrong firm to seek waiver, assuming the firm/attorney is even reachable after 10-15 years.

It is true that much of the same strategy and expert work also needs to be done in preparation for an inter partes patent reexamination. While there is no opportunity for a similar delay in that proceeding, often times ex parte requests are quite unexpected. For example, request can be filed anonymously in ex parte patent reexamination. Inter partes reexamination tend to occur more often in the face of open, and ongoing adversity.

Thus, the lack of cooperation is not unreasonable in many circumstances.

What Can be Done by the USPTO?

Certainly, the Office needs to accelerate patent reexamination proceedings to the best of their ability and the waiver program is a sensible solution. At least two months are lost between the Order and first action when a Patentee refuses to waive, and then does not file a Statement. Another way to encourage compliance with this program, and to recover these two months, is to modify the shortened statutory response period. Typically, a Patentee has (2) months to respond to an office action in patent reexamination. The Office should consider changing this period to (1) month for Patentees that do not cooperate with the Waiver Program.

In other words, in the Office communication (interview summary) that notes the Patentee’s decision as to the waiver program, notice would be provided that a modified, shortened statutory period may apply to the proceeding. That is to say, for those Patentees that refuse to waive the right to file a Statement (including those that “could not be reached”) that then do not file a Statement, a shortened statutory response period (1 month) would apply for all office actions. As any reexamination proceeding continuing on to appeal will include at least a first action and final action, two months would be recovered for all long term ex parte patent reexamination proceedings.

This modified, shortened statutory response (1 month) is already in use in many patent reexaminations. The Office currently modifies the response period in ex parte patent reexamination when a parallel litigation is stayed pending the patent reexamination. (MPEP 2263)

Of course, some would argue that this solution would just encourage additional petitions for extension of time. To account for this the Office would also require as a component of any such petition going forward, a statement and explanation of non-cooperation with the program, non-cooperation weighing against an extension absent extraordinary circumstances.

With this solution Patentees would retain their statutory right to amend and submit evidence, and the Office would be able to reduce overall pendency for ex parte patent reexamination proceedings. 

Presumption of Validity Affirmed by Supreme Court

Today, the Supreme Court issued a unanimous decision in the closely watched case of Microsoft v. i4i . As discussed at length previously, Microsoft sought Supreme Court review of the following issue:

Whether the court of appeals erred in holding that Microsoft’s invalidity defense (which rested on prior art never considered by the USPTO) must be proved by clear and convincing evidence.

Today the Supreme Court affirmed the CAFC’s earlier decision upholding the clear and convincing standard, much to the relief of stakeholders everywhere. (save Microsoft of course)

The holding (here) explained that although 35 U.S.C. § 282 does not provide for a specific standard of proof, the statute’s use of the terminology “presumed valid” connotes such a meaning based on common law doctrines. Further, the court noted that Congress has not acted to alter this well established practice despite decades of notice. Finally, the court agreed with my earlier position that the patent reexamination statutes were clear evidence of Congressional intent in this regard.

The court summarized the parties positions as follows:

The parties and their amici have presented opposing views as to the wisdom of the clear-and-convincing evidence standard that Congress adopted. Microsoft and its amici contend that the heightened standard of proof dampens innovation by unduly insulating “bad” patents from invalidity challenges. They point to the high invalidation rate as evidence that the PTO grants patent protection to too many undeserving “inventions.” They claim that inter partes reexamination proceedings before the PTO cannot fix the problem, as some grounds for invalidation (like the on-sale bar at issue here) cannot be raised in such proceedings. They question the deference that the PTO’s expert determinations warrant, in light of the agency’s resources and procedures, which they deem inadequate. And, they insist that the heightened standard of proof essentially causes juries to abdicate their role in reviewing invalidity claims raised in infringement actions.

 .           .           .           .           .

 For their part, i4i and its amici, including the United States, contend that the heightened standard of proof properly limits the circumstances in which a lay jury overturns the considered judgment of an expert agency. They claim that the heightened standard of proof is an essential component of the patent “bargain,” see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150–151 (1989), and the incentives for inventors to disclose their innovations to the public in exchange for patent protection. They disagree with the notion that the patent issuance rate is above the optimal level. They explain that limits on the reexamination process reflect a judgment by Congress as to the appropriate degree of interference with patentees’ reliance interests. (emphasis added)

The court explained their affirmance, reasoning:

We find ourselves in no position to judge the comparative force of these policy arguments. For nearly 30 years, the Federal Circuit has interpreted §282 as we do today. During this period, Congress has often amended §282, see, e.g., Pub. L. 104–141, §2, 109 Stat. 352; Pub. L. 98–417, §203, 98 Stat. 1603; not once, so far as we (and Microsoft) are aware, has it even considered a proposal to lower the standard of proof, see Tr. Oral Arg. 10. Moreover, Congress has amended the patent laws to account for concerns about “bad” patents, including by expanding the reexamination process to provide for inter partes proceedings. See Optional Inter Partes Reexamination Procedure Act of 1999, 113 Stat. 1501A–567, codified at 35 U. S. C. §311 et seq. Through it all, the evidentiary standard adopted in § 282 has gone untouched. (emphasis added)

It will be interesting to see if this decision in any way impacts the patent reform debate going forward. To quote today’s opinion “Congress specified the applicable standard of proof in 1952 when it codified the common-law presumption of patent validity. Since then, it has allowed the Federal Circuit’s correct interpretation of §282 to stand. Any recalibration of the standard of proof remains in its hands.”

Political Maneuvering & Patent Reform

Next week the House is expected to begin floor debate on the America Invents Act…maybe. Further amendments are expected to be offered prior to the floor debate, however, two recent sticking points have emerged that may stall recent progress.

The first, although not new, appears to have gathered some steam lately, namely, the debate over the proposed “first inventor to file” provision. Having been unsuccessful in defeating this provision previously, opponents now insist that the U.S. Constitution requires that the “first true inventor” be protected. The reasoning goes that the language “first and true inventor” appeared in the Patent Acts of the late 1700s (which were written by the some of the same guys) so the Constitution must be interpreted similarly. The IEEE has gone as far as to suggest that the recent Supreme Court decision in Stanford v. Roche somehow impacts Patent Reform…it doesn’t.  Yet, desperate times call for desperate measures.

The second sticking point has emerged in the last few days and has the greatest potential to derail efforts until after the July 4th break, that is, renewed efforts to continue fee diversion from the USPTO. Appropriations Committee Chairman Hal Rogers (R-Ky.) and Budget Committee Chairman Paul Ryan (R-Wis.) expressed their concern over the current bill provision enabling the USPTO to keep fees to fund and update the U.S patent system. The Congressmen explained:

We strongly oppose this proposed shift of billions in discretionary funding and fee collections to mandatory spending. . . .Putting PTO funding on auto-pilot is a move in exactly the wrong direction, given the new Republican majority’s commitment to restrained spending, improving accountability and transparency, and reducing the nation’s unparalleled deficits and debt.

The fact that the USPTO is a self funded organization that has been cash starved to the point of near collapse was not mentioned.

The growing Republican faction opposing a fully funded USPTO has now enlisted an economist who describes the problem as a matter of “democracy and liberty.” 

Our elected Senators and Representatives in Congress should not abdicate their responsibility to control USPTO funding. They should not turn over to the Director of the USPTO the autonomous power both to raise and spend money, without any further legislation from Congress. As James Madison said, “[t]his power of the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Evidently, a fully funded USPTO is a danger to democracy. 

Unfortunately, due to the growing opposition to the fee diversion provision, and the potential parliamentary complications, it is almost certain that this provision will be either stricken altogether or modified to the point of insignificance. 

Earlier in the week, Senate Majority Leader Harry Reid (D-Nev.) criticized the House’s inaction on several bills, including patent reform calling the House a “big dark hole” where job-creating legislation created in the Senate goes to die. He stated that “[o]ne of the most important things we can do is protect our patent system and make it better than it is. . . We did that here. We passed it here, sent it to the House. Nothing has happened on that. They haven’t voted on it.”

Politics…..