Conference on patent reform - a quick summary of five major themes

Yesterday I attended the Conference on Patent Reform cosponsored by the National Academies and the American Intellectual Property Law Association (AIPLA).  With the introduction of The Patent Act of 2005 (HR 2795) and its controversial provisions just the day before, the Conference promised to be an exciting one for patent law geeks like myself.

It didn’t disappoint.

Here’s a brief summary of major themes — I plan to write more over the weekend if time permits.

1.  The line on the injunction issue, despite the softened language contained in the bill as introduced, is sharper than ever.  Biotech, big pharma, and small entities are strongly opposed to any change to the status quo.  The high tech sector (software and some “manufacturers”) continues to seek change, hoping to see more equitable considerations applied when a court considers awarding an injunction after a patent has been determined valid and infringed.

The injunctive relief provision is particularly irritating because it has not been part of the reform proposals that have been discussed over the last several years.  It showed up on the political doorstep at the last minute and now stands to throw a real wrench in the works.  The focus of the reform movement has always been about improving the quality of our patent system.  Until now.

2.  The agenda of the software industry appears to run deeper than the stance it has taken on the injunctive relief issue.  Look for discussion about our “unitary patent system” in the future, and software’s desire to change it.

3.  The inadequacy of Patent and Trademark Office resources is on everyone’s mind, especially in light of the additional administrative burden that will be placed on the Office with the enactment of several of the reform proposals.  As I’ve said before, reform legislation is likely to be tied to the PTO funding issue.  Look for a push to address the funding issue alongside the reform issue.  Is now the time to address the seemingly impossible task of taking the appropriators out of the PTO budget process?

4.  When thinking about timelines for reform legislation, remember that The American Inventors Protection Act (AIPA) was passed in 1999.  The process to put that legislation in place started in 1991.  You do the math.

5.  Politics.  Historically, patent legislation has been consensus based.  At this point, there appears to be consensus on several of the proposed quality initiatives.  The injunctive relief provision, though, is a dividing issue and, without separation from the quality provisions, may affect the future of any consensus and, ultimately, the reform movement itself.

On the political front and the need for consensus, consider this:  Representative Lamar Smith, after delivering his keynote address, elected not to take questions on fears that his answers might have the potential to upset the “delicate balance” that exists between the interested parties.  His decision not to interact with the audience didn’t upset me, though.  I only had one question — What delicate balance?

[Copyright 2005 J. Matthew Buchanan; Originally published on Promote the Progress (http://www.promotetheprogress.com).]