The Indian Patent Office is in a major growth phase – 30% increase in filings year over year. Perhaps not suprisingly, “[t]he largest number of patent filings has been in the chemicals and pharmaceuticals segment, which account for around half the total filed.” Read all about it here.

The mid-term election brought sweeping change to the United States Congress. Indeed, so much sweeping occured that the balance of power shifted in both the House and the Senate. While patent law and reform is typically viewed as a non-politicized topic, the shift in the balance of power will have some immediate practical effects.

The most significant of those effects seem to focus on Senator Hatch, who’s comprehensive reform bill sits idle in his Intellectual Property Subcommittee of the Judiciary Committee.

We know that he will no longer be Chairman of the Intellectual Property Subcommittee. Senator Leahy will take over, and its widely known that he sees patent “issues” sitting at the top of his agenda for the 110th Congress. He’s got a reform bill waiting in the wings that will likely be used to get the conversation going again – look for it to be introduced early in the 110th Congress. We’ll have to wait to see how Senator Leahy defines ‘patent reform.’

Rumor has it that Senator Hatch will be leaving the Subcommittee (hey, if you can’t be a Chairman….), perhaps even the Judiciary Commiittee altogether. This, of course, does not mean that he cannot be involved in intellectual property legislation. It certainly does mean, though, that his influence on such matters stands to change dramatically, despite the high-praise he continues to recieve from some.

Considering these effects of the election, and Senator Hatch’s drive to focus on intellectual property issues, it’s possible that the Senator might make a play to advance patent reform during the month of December. Pushing major policy change through at the last minute is certainly not unheard of, but, considering the controversial nature of the topic, such a strategy seems highly unlikely.

And now we wait. Yesterday, the much-anticipated oral argument was held in KSR v. Teleflex, the Supreme Court case that questions the propriety of the Federal Circuit’s teaching-suggestion-motivation (TSM) test for obviousness. The Court could issue an opinion that amounts to the single biggest patent policy decision in decades. Or not.

And now we wait.

No matter the disposition of the case at hand, the opinion will likely show the frustration the Justices have with the Federal Circuit’s TSM test. Based on questions posed of both sides, and the resulting discussions, it is clear that the Justices struggle to understand the basic purpose of the test and its workings. At one point, Justice Scalia referred to the test as “gobbledygook” that is “irrational.” Justice Breyer confessed “I just don’t understand what is meant by the term ‘motivation.’”

Justice Scalia even joked about his inability to understand the test:

Respondent’s counsel: “I think you can’t understand what motivation means and what the whole test that the Federal Circuit is employing means –”
Justice Scalia: “You’re right about that.”
Respondent’s counsel: “– without –”
(Laughter.)
Respondent’s counsel: “– without starting from the statute itself.”

But frustration with the TSM test isn’t the end of the story. The Justices even revealed a bit of contempt for the Federal Circuit and it’s recent attempt to explain the TSM test in Dystar Textilfarben v. C.H. Patrick. It’s clear that the Justices view that decision simply as an attempt by the Federal Circuit to dress-up the TSM test prior to the Supreme Court’s review of KSR.

Respondent’s counsel: “There is nothing fundamentally not functional about how the Federal Circuit is approaching this question.”
Justice Breyer: “And it so quickly modified itself.”
Justice Scalia: “And in the last year or so, after we granted cert in this case after these decades of thinking about it, it suddenly decides to polish it up.” (a reference to Dystar)
Respondent’s counsel: “Justice Scalia, if you actually believe that, then you just don’t believe the judges in the Federal Circuit because in each of these opinions they say quite explicitly we are not changing it.”

And now we wait. Perhaps a major shift in patent policy is forthcoming. Perhaps not. No matter the disposition and the holding on the issue, its probably safe to expect a strongly worded opinion that shows both the frustration the Justices have with the TSM test and their contempt for the Federal Circuit and its recent attempts to put a luster on the test.

You can view and/or download the transcript of yesterday’s oral argument at the Supreme Court’s website.

For more on the case, see Crouch’s excellent review and collection of all things KSR at Patently-O.

The lame duck Congress continues to consider patent issues, and the possibility of some legislative action in the waning days continues to loom.  The bill with the greatest chance of survival as law appears to be Representative Issa’s pilot program that’s designed to encourage enhancement of expertise in patent cases among district court judges (HR 5418).

The bill has passed the House and a companion bill (S. 3923), which was introduced by Senator Hatch, currently sits with the Senate Judiciary Committee awaiting markup.

Can the bill get onto the Committee’s undoubtedly busy December schedule?

If you’re an inventor or innovator and you need a little inspiration to help “unstick” the inventing or innovating process, head on over to our “Five minute inspiration for inventors and innovators” on Rethink(IP). Seriously….inspiration in five minutes. Give it a try.

Looking for some reading material for the weekend? The November/December issue of the Boston Bar Journal includes a great article by Howard Susser and Jerry Cohen on eBay v. MercExchange and its impact on patent law. The article presents a brief review of the background of the case and a thorough analysis of the majority and concurring opinions. A very provocative listing of “issues left to be resolved in the wake of eBay” is worth the time investment alone.

And I promise I would recommend the article even if the authors hadn’t referred to Promote the Progress as “an excellent weblog…directed to patent reform and policy….”

Enjoy.

Here’s an interesting resource – a timeline of the patent reform efforts of Jeff Bezos (Amazon) and Tim O’Reilly (O’Reilly).  The creator styles it “A web 2.0 look at Jeff and Tim’s Excellent Patent Reform Adventure…”

Thanks to Scripting News for the lead.

Politically speaking, Ohio is in shambles right now. We’re traditionally quite red, but have suddenly become fairly purple, thanks to several black marks arising out of the northwest part of the state (which I call home). Despite all the controversy, we do have some good news to report. The Buckeyes have a solid lock on number 1 and their fearless leader Troy Smith appears to have at least his first name engraved on the Heisman Trophy right now.

But wait…there’s more. We also recently became the center of the IP blogosphere. That’s right….little old Ohio is officially the center of the IP blogosphere. How can that be, you ask? Well, Jake Ward (Anticipate This!) recently announced that he is moving to my former firm, which is also based here in OH. Add in Promote the Progress, the Patent Baristas (Cincinnati), and Doug Miller’s blog (now in the same firm as Jake), and I think we can legitimately stake a claim on being the IP capitol of the blogosphere.

I’m debating sending a note to our new Governor, proposing a change in the tourism slogan. 

Nipper is scrambling to determine if his beloved Idaho can compete with the Buckeye state.

Guy Kawasaki recently asked us to respond to his comments about the role of patents in the defensibility of a startup. We did. And, as you’ve come to know us, we don’t give the typical patent attorney response. Our take on the defensibility question: Sometimes, you’ve got to realize that “patent everything” is not the best strategy…and then develop a big-picture intellectual property strategy that is custom-tailored to the startup and its industry. Be brave and accept the fact that patents just might not be the whole enchilada in that picture. Read the complete Rethinker’s response over on Guy’s blog.

Yesterday, NTP filed a patent infringement suit against Palm. Ho hum, another patent infringement suit, right? Wrong. This one deserves attention. Why? Well, for one, NTP is probably the most recognized of the so-called ‘patent trolls.’ Remember that NTP is the intellectual property holding company that achieved a $612 million settlement with RIM over the BlackBerry devices.

But that was before the Supreme Court tweaked injunctive relief law in eBay v. MercExchange (right before it, actually).

This current lawsuit comes in the wake of the eBay decision. So now, the most famous troll of all is testing the eBay-inspired injunctive relief law. Now that’s interesting.

Scoop goes to the Patent Prospector.