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April 18, 2007
New patent legislation
Today, Senator Patrick Leahy, Chair of the Senate Judiciary Committee and Representative Howard Berman, Chair of the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property are scheduled to introduce new patent reform legislation. The introduction of this bill will mark the next step in the process of patent reform in the 110th Congress. In February, Berman held a packed-house hearing on the issue - American Innovation at Risk: “The Case for Patent Reform.” (Note: the line up of that hearing was similar to a 2005 Athena Alliance event Is the US Patent System Endangering American Innovation?)
The bills being introduced today are expected to be similar to legislation introduced in the last Congress. That process got bogged down, due in part to a disagreement between the IT and pharmaceutical industries as to the nature of the reforms needed. The IT industry needs a way to sort through the explosion of patents and the problem of inadvertent infringement. Their problems stem from the fact, as they claim, that it is almost impossible to innovate without tripping over someone else's patent. For pharma, the patents are much clearer. The descriptions of the chemical formulas are usually more precise, so it is easier to know what is or is not covered by the patent. Pharma is looking for clear enforcement of existing patents.
The dynamics of the issue seems to have changed from last year. As today's Washington Post points out (Patently at Odds):
The shift in political control on Capitol Hill coupled with the Supreme Court's newfound interest in taking patent cases has energized a congressional drive to revamp the patent system for the first time since the 1950s.(For those of you new to the issue, the Post story is a good summary of these two contenting points of view).
We will see if there real has been a change from last year -- and if that change is enough to move a bill forward. One of the ideas that could break the dead lock has been constantly sidestepped during the debate. Brian Kahin and others have raised the possibility of move away from a unitary patent system, i.e. the same system for all industries. Kahin organized a conference last fall at the University of Michigan Law School: Patents and Diversity in Innovation.
I don't think the Congress is quite willing to wade into the issue of a non-unitary patent system. There are major issues to be addressed as to how to create flexibility for different industry situations within a consistent framework. But this conference has begun the process of building the foundation for the next wave of patent reform.
Of course, we still have to get this version of reform through the Congress. There are many other obstacles beyond the IT-pharma split. As the Post points out:
Congressional initiatives to revise the patent system have drawn intense interest from sectors including traditional manufacturers, universities, banks and financial services, and small businesses. The industries vying to sway the outcome have dramatically ramped up their campaigns, engaging some of Washington's most prominent lobbying firms since the start of the year.
So, one step at a time. But keep an eye on the future as well.
Posted by Ken Jarboe at April 18, 2007 8:05 AM
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