Patent Law

Not Circling the Wagons

By Gary Odom and Jordan Kuhn

Another year, another turn of the wheel, and the same patent political issues rear their ugly little heads. Senate Minority Whip Jon Kyl (R-Arizona) has his shtick of pocketing lobbyist money by promising to rape DataTreasury of patent protection for its digital bank check processing, known as "Check 21." This year's DOA bill has already been introduced (S3600). And that's but the start of it. The kibitzers aren't on vacation.

TS Tech was a death knell for plaintiff venue selection. "Plaintiff deference" became so hollow that a plaintiff's deference in venue selection is overcome by where the plaintiff resides, as as aspect of the crucial factor of convenience mandating transfer. The irony never ends. Yet the unintentionally sardonic "Progress & Freedom Foundation" touts a legislative proposal to limit venue shopping, worried over loopholes in otherwise proposed legislation that will never be passed.

The major misnomer called the Coalition for Patent Fairness has a revamped site, and a retooled message for the times: "Modernization and reform of the current patent system will spur job creation by allowing American businesses to focus on innovation instead of burdensome unjustified patent litigation against their products." If you believe that, contact me for excellent opportunities to invest in mountain peak real estate in Florida.

The Coalition web site now sports a blog, that rather surprisingly lays out, naked as a jaybird, the problem that this lobby has with inventors: you can't countersue them. In praising Microsoft getting its 10,000th patent, a shadow looms over all that lovely patent power. "Most of the suits have come not from other technology companies, he said, but rather from the firms whose primary business is acquiring and enforcing patents. In those cases, having a large patent arsenal of one's own is of little use, since there are no products that could be used to countersue over." It's a damn shame.

Long odds that anything patent related makes it into law, except for some amendment tacked onto a more critical bill. That's a rather common tactic for pork spending. And that's what Congress is all about this year: pork, to get the economy out of the 2nd Great Depression.

Congress has taken down the rigging for comprehensive patent reform passage, by abolishing its IP subcommittees. That makes it much harder to herd the cats, as all Judiciary committee members must wrap their heads around proposed legislation. With the economy in the dump, who has time to piss on patents? Only the kibitzers, and the pay-for-confession ears attached to Congressional top dogs like Senator Kyl, and Judiciary honchos in the Senate and House: Sen. Leahy (D-Vermont) and Rep. Conyers (D-Michigan), and their minority Republican counterparts Sen. Specter (R-Pennsylvania) and Rep. Smith (R-Texas).

So, no patent reform this year, unless the high courts get another bug up their butt, such as, say, over damages, one of the few significant areas left untouched in the past few years of activist court intervention in patent law, as a response to perceived political pressure. But CAFC Judge Michel has repeatedly said that damages law is well developed, and changing that regime would only impose further burden on the courts. So, to hell with that.

Full post as published by The Patent Prospector on February 22, 2009 (boomark / email).