Patent Politics

I have an article in the August 2007 issue of IP Law & Business about politics, displeasure, and the US Patent & Trademark Office. I actually preferred the original first paragraph:

Business people and lawyers complaining about federal agencies? Quick, call the TV cameras—the sun rose today. But noise about the U.S. Patent and Trademark Office in the patent community is escalating lately from complaints to serious criticism and even to allegation.

Ah, well, editing is about change. The topic is interesting, though - and given new continuation rules (which affect the entire patent application process) and proposed changes in patent law, there's a lot that CEOs and CFOs should be considering. This is not just an issue for a company's general counsel.

Peer Patent Reviews Start at USPTO

The U.S. Patent and Trademark Office has just started on a year-long experiment in peer patent review. The way the process now works is that companies and people submit patents, often with broadly-phrased claims, in hopes of getting a license on a new way of doing something. PTO examiners will push back on many of the claims (fewer than half of applications reviewed last year were immediately granted a patent). But there's been question in the patent community with how well the process is working. For example, look at the case of a company suing the Blackberry's manufacturer for patent infringement. RIM lost in court and had to pay hundreds of millions to the plaintiff, yet now there are some challenges to the patent, which may not survive. It would be too late for Blackberry, which wouldn't get to recoup the money.

So the PTO is working with New York Law School's Institute for Information Law and Policy to try a peer review approach. Companies (including Microsoft and IBM) voluntarily provide software patent applications and anyone can comment and look for prior art that would show the invention isn't new or novel.

The idea isn't actually new; both the European and Japanese patent offices have used a different patent model from the US. Instead of doing all reviewing in-house, they grant applications and then providing a period of time in which others can challenge the basis of the patent. And software is a great place to try this - it's one of the biggest causes of patent application overload and one area where much of the community is already used to peer review in the form of open source software. But with backlogs that can run from a couple of years to five or six (particularly in biotech), it's worth a try. Almost anything is.

Fast Track Patent Reform Sees a Few Bumps

Lately, Congress has been in a rush for patent reform becasue of the litany of problems that have become regular fodder for IP lawyers and corporations: crushing backlogs, an ever-increase scope of what can be patented, complaints about the quality of patents granted, lack of modern IT systems to help the Patent and Trademark Office (PTO) operate in a more efficient manner. But there has also been concern whether the haste might lead to more patent waste. Now a group of Republican senators has sent a letter (via Dennis Crouch's Patently-O blog) to both Democrat Patrick Leahy and Republican Arlen Specter on the Senate Judiciary Committee about whether slowing the impulse to fix and thinking over the steps before taking them might be a wiser approach in the long run.