Friday food for thought: Questions from the Corner
We held the “Bloggers’ Corner” event earlier this week at the Spring meeting of the Intellectual Property Section of the American Bar Association. The Corner was a tremendous success by any measure, and a lot of fun to boot. As a follow-up post for people who weren’t at the meeting or just didn’t get a chance to step into the Corner, I thought I’d present a summary of some of the more interesting questions people asked me, along with the answers I gave.
What do you consider to be the most interesting issue in patent policy today?
I can’t pick just one. I really think we are in the midst of an historical time in patent law and policy, and several interesting issues are developing. I think it’s fascinating that all three branches of our government are currently working on various aspects of “patent reform.” As for the “most interesting issues,” though, I’d leave Congress out of it for now considering the current stalemate on legislative change. I’d rank the Supreme Court’s decision in eBay v. MercExchange at the top for several reasons. The case opens the door for the development of varied district court law on the controversial injunctive relief issue (which we’ve just seen the beginning of with the z4 decision). Also, I believe it throws down a gauntlet for Congress on the same issue…does Congress intend a patent to carry an absolute right to exclude? Lastly, it ensures that patent trolls will stay in the limelight for the foreseeable future.
I’d rank the PTO’s proposed rules as the second most interesting issue. Not so much for the substance of the rules per se (although the substance is pretty darn interesting), but more for the symbolic nature of the rules. The Office is undergoing a significant shift in culture, becoming more aggressive in its control over the patent process. It has become very clear over the last several months that the current administration is willing and able to test the bounds of its authority to regulate its own house. It’s admirable that the Office wants to do what it can to add efficiencies to the patent process. I worry, though, as many others do, that this newly aggressive approach will damage the environment of cooperation that has developed between the Office and the bar over the last several years.
Is Patent Reform dead?
Yes…and no. We won’t see a change come from this Congress. From a purely logistical standpoint, we’re at the point where it’s nearly impossible for this Congress to pass anything meaningful. I do think it’s a real possibility that something relatively small could get lobbed into an appropriations bill or another suitable vehicle that has some momentum and/or pressure behind it. Representative Issa’s bill to develop patent expertise in district court judges seems a likely candidate. Overall, though, I’d say that patent reform in the broad sense is dead in this Congress.
That said, you can bet it will show up in the next Congress, and the next, and the next. Patent legislation often takes many years to develop. So, in that sense, it’s not dead..it’s just entering the next stage of life.
Patent reform is also “not dead” because it has moved beyond Congress and into other venues, including the Supreme Court and the Patent and Trademark Office. All three branches of government are now looking quite closely at the patent system and considering various “reform” issues. This aspect of “reform” is likely to continue for some time as, for example, KSR v. Teleflex looms at the Supreme Court and the Office’s proposed rules hang in the balance.
What’s the legacy of eBay going to be?
I see two potential “legacies” of this landmark case. The first is Congressional action. I think eBay is a gauntlet, thrown down by the Court as a challenge to Congress. Congress needs to re-read the Constitution and think about the way in which it has exercised the Patent Power. Is the status quo acceptable or is a rethinking warranted? We know that Representative Berman believes the Court got the issue right, but we do not yet know how any other Members feel about the case. Time will tell if Congress accepts or ignores the challenge.
The second potential legacy depends on the first. If Congress does nothing…eBay will live on…and pockets of district court law will develop around the issue of the proper circumstances for awarding injunctive relief. Who is entitled to it? Who isn’t? When? In this scenario, the concurring opinion of Justice Kennedy will become quite significant as district court judges use its permissive language to deny injunctive relief in all types of scenarios. If this legacy develops, the wise patent stakeholder will watch it closely…and leverage it, whether they are a patent owner or otherwise.
Is fee diversion here to stay?
I’ve been asked this question many times, and my answer is always the same. “Looks that way.” I’m encouraged by the action of the House Appropriations Committee this week, but am concerned about the apparent unwillingness to adopt a permanent end to diversion. The current approach of temporary fixes is better than nothing, but it does continue the current environment that makes it difficult for the Office to effectively budget and plan for the future.
So who wins…Software/High-Tech or Biotech/Pharma?
I don’t know who “wins” or even that a “battle” is at hand, per se. But, I do think the software and high-technology industries are using the patent quality and application pendency issues very effectively to advance their agenda.
What’s the legacy of the 109th Congress relating to patent law and policy?
This Congress has done a wonderful job at documenting various viewpoints on our patent system and on several proposed reforms. The House conducted an amazing number of hearings and has established a decent record for going forward. I think it will have a legacy of laying foundation, and not one of implementing change.
I do note, however, that it’s still not too late for this Congress to enact meaningful reform on PTO funding issues (i.e., fee diversion). It’s unlikely, but possible. There are a couple of proposals with vastly different approaches that are looming in Congress. Perhaps they’ll see some action during the appropriations process, perhaps not.
Do I need to worry about patent reform?
No less than four different people asked me this question (in one form or another). I didn’t know how to answer it then, and I don’t know how to answer it now. I guess the only thing to say is that you need to assess your individual situation and consider patent reform in all of its glory (which, today, includes all three branches of government). Change is coming, be sure of that. Hopefully, the goal of improving the patent system will remain the focus of the various reform efforts.
Why do you blog?
This one’s easy…Passion. See the ‘Why?’ section in the ‘About’ page.
What are you doing with an Oklahoma-based firm?
There’s a short answer and a long answer to this one. Here’s the short answer - Family brought me home from Chicago and a similar mindset regarding the business of law took me to Oklahoma.
Want the long answer? Ask me in person sometime.
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