Promote the Progress

The oral arguments in eBay v. MercExchange are over and now we wait to hear what sayeth the Supremes on the injunctive relief issue. (Update May 15, 2006 – click here for an analysis of the Supreme Court decision)  Some expert Court watchers are reporting that the tone of the questioning during yesterday’s oral arguments revealed a likelihood that affirmance of the right to injunctive relief can be expected.  But the real issue, of course, is whether the ”nearly automatic” granting of injunctions following a finding of infringement will be trimmed back.  For that, we’ll have to wait until a decision is rendered in June.

But eBay marks a beginning even more that it does an end.  With the injunctive relief issue presumably settled, we’re now set to head into Round Two of the patent reform movement in the United States.  Everything that has happened thus far is merely a prologue that served to define the real battle lines.

The eBay decision, no matter the outcome, will likely serve to bolster the position of some in the reform debate and enrage others.  Incentives and desires to bargain on particular reform measures, and maybe even the ability to do so, may change and the power of Congress to legislatively overrule the Court may be supported by some as a nuclear option.

We’re really at a crossroads.  Round Two could be marked either by bitter disagreement that completely stalls the process or by a renewed focus on the reform measures on which agreement amongst stakeholders has been previously expressed, such as the fee diversion issue.  This seems timely, considering the facts that the Justices apparently inquired about patent quality during yesterday’s arguments and that the temporary fix to the diversion problem expires at the end of fiscal year 2006.

We may get a glimpse at Round Two as early as next Wednesday, when the House Subcommittee on Courts, the Internet, and Intellectual Property holds a patent reform hearing with the interesting caption “Patent Quality Enhancement in the Information-Based Economy.”

Considering the Justices questioning regarding patent quality, eBay may bring us full circle – it will be very interesting to see if any dicta relating to patent quality and/or patent reform in general makes its way into the opinion.

Law.com is running an article of mine on the eBay v. MercExchange case, argued before the Supreme Court this morning, in its IP Law Practice Center. You can view the article here (you’ll need a law.com subscription), but I can send you a .pdf if you ask for it.

The USPTO has reiterated its call for comments and suggestions for the forthcoming new strategic plan that will guide agency operations from 2007 through 2012.   You can send your ideas by e-mail to StrategicPlanning1@uspto.gov.

It’s perhaps a fortunate coincidence that the development of the next strategic plan comes as the same time as PTO stakeholders are digesting radical steps proposed by the Office as partial solutions to the growing backlog of pending patent applications.  Throwing your hands up in disgust at the proposed rules?  Do something constructive — send your ideas as comments on the strategic planning initiative.

We’re hosting the 48th edition of BlawgReview this week at Rethink(IP). In drafting our edition of the review, Steve, Doug and I did our usual collaborative thing – we fired up Writely and Skype, and starting writing. We hosted Carnival of the Capitalists before, so we were aware of the work involved with a carnival and the general style, and we quickly slipped into “carnival writing” mode.

But then we stopped. One of us asked a question that halted us in our tracks (we have a habit of rethinking things…). It seemed easy enough – “what is the purpose of a blog carnival?” But as we considered it, we realized the complexity of it all. Is a carnival just a means for the submitters to garner Google juice? If so, what value are the hosts/editors adding other than shouldering the burden of assembling links and coming up with some humourous language that connects seemingly unrelated posts?

Hmmm….

We decided that a carnival is more (or should be more). As hosts, we wanted to add value. So we reviewed the submitted posts with the readers in mind. We picked the posts that, we thought, would spark the most thinking amongst the readers.

So check out the Rethink(IP) version of BlawgReview. You can keep track of BlawgReview here as the carnival tours the blogosphere.

Have you heard?  The Patent and Trademark Office is scheduled to release its next-generation e-filing system for patent applications on March 17th.  The new system, EFS-Web, appears to be a quantum leap forward and is likely to prove to be a practice-changing technology.

The Rethink(IP) crew (Doug Sorocco, Steve Nipper and me) wanted to learn more about the new system and do something to get the word out….before it is launched.  The result is the fifth installment of our Rethink(IP) Aloud podcast.

For this podcast, Steve and I had a very informative conversation with Carl Oppedahl, a recognized leader on PTO technology issues.  Carl has been beta-testing the new system…and tells all the gory details about his experience in the podcast. 

What can you do to get ready?  Why start e-filing?  What benefits does the new system offer?  Listen in, and you’ll get answers to all of these questions and more.

You can listen to the podcast by streaming and/or downloading it here.  An RSS feed of the Rethink(IP) Aloud podcast series is available here.

Steve has the information on the PTO online product launch for EFS-Web scheduled for March 20th here.

Steve Nipper has summarized views recently expressed in Greg Ahorian’s PATNEWS newsletter about the rule changes recently proposed by the Patent and Trademark Office.

Greg’s views are certainly interesting. Thanks Steve for presenting them to the blog readers of the world.

Today’s edition of the Wall Street Journal includes an op-ed piece on the current state of patent law, entitled “Patently Absurd.”

You can view the article here (subscription required).

The article is an attack on all things patent. Don’t worry, though. The Editors have determined the source of the problem – the lawyers.

Yep. It’s all our fault.

Patent Trolls? Yep…our fault. The article has a clever description of the so-called patent troll problem that avoids use of the “T” word while asserting a simple and disturibing message: small patent holders who don’t commercialize their inventions don’t deserve injunctive relief or even monetary damages when their patents are infringed. Their patent infringement lawsuits are “dubious,” apparently simply because of their small size and lack of commercialization. This is a strong, anti-property rights position taken by the Journal that, sadly, comes as no surprise considering previous Journal articles regarding so-called trolls.

Damn lawyers should know better than to assert the patents of these undeserving opportunists.

The surge in the numbers of patents and patent applications? Yep…that’s our fault too. Both the number of patent applications and issued patents have surged in the last two decades…everyone knows that. But, did you know that “[t]his has less to do with genuine innovation than it does with innovative lawyers filing a patent on anything that moves.” Aside from the message that sends about using patents and applications to measure the state of innovation, it completely ignores the responsibility lawyers have to their clients.

Damn lawyers should know better than to aggressively protect the interests of their clients by pursuing patent protection that complies with the patent laws. Apparently we should advise our clients to seek less than that allowed by the law.

The article closes with an instruction that seems to blame us for everything:

“Testifying before Congress last June, Josh Lerner, a Harvard Business School professor, summed up the problem: “In the past two decades, the U.S. has strengthened patent rights, while weakening the standards for granting patents.” The result is that the patent system is fast becoming a detriment to U.S. competitiveness, not to mention basic fairness. So if your BlackBerry ever does go dark, don’t curse the company. Blame the lawyers.“

Sure, they’re talking about those evil NTP lawyers that are seeking enforcement of the rights of their troll client against RIM, the maker of the BlackBerry. But read it again…and again…and again. Yep, now you’ve got it. According to the Journal, it’s all our fault.

What the article fails to mention is that lawyers, being the clever innovators that we are, have played a driving role in the current patent reform movement. The American Intellectual Property Law Association (largely a professional society for IP lawyers) played a key role in drafting the Patent Act of 2005, which the Journal article called “useful.” Sure we have differing opinions on the need for reform and the structure of some proposals, but we, the lawyers, have played an important role in advancing the debate on an amazingly broad spectrum of sweeping changes to the law. As the magnifying glass has turned onto our corner of the law, we have not shyed away. Rather, we have grabbed the handle and helped with the review. Introspection is always difficult, but I believe we can be proud of our efforts thus far, despite the uninformed criticisms of others.

The House Judiciary Committee will hold a markup hearing today on H.R. 2955 (the Intellectual Property Jurisdiction Clarification Act of 2005), which aims to clarify that the Court of Appeals for the Federal Circuit has exclusive jurisdiction of appeals relating to patents and other intellectual property issues.

Separately, the Subcommittee on Courts, the Internet, and Intellectual Property will hold a markup hearing on recently-introduced H.R. 4742 , which grants the Director of the Patent and Trademark Office statutory authority to waive certain provisions governing patents and trademarks in emergency situations.

The meeting of the Subcommittee is scheduled to start at 12:00 Eastern. A live webcast will be available here at that time.

Markup of other pending patent legislation has not yet been scheduled.