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A recently-departed senior PTO official, who had been one of the advocates and architects of the 2006 rules, recently stated that the Patent Office’s plan was indeed to use this fee-setting authority to limit inventors’ ability to obtain patents on complex inventions, that the Patent Office would use its new fee setting authority to force applications into the PTO’s definition of a “well-drafted application.”<ref>Arti Rai, Patent Reform and the Progress of Innovation, http://www.scienceprogress.org/2011/03/patent-reform-and-the-progress-of-innovation/http://www.scienceprogress.org/2011/03/patent-reform-and-the-progress-of-innovation/ March 15, 2011</ref> |
A recently-departed senior PTO official, who had been one of the advocates and architects of the 2006 rules, recently stated that the Patent Office’s plan was indeed to use this fee-setting authority to limit inventors’ ability to obtain patents on complex inventions, that the Patent Office would use its new fee setting authority to force applications into the PTO’s definition of a “well-drafted application.”<ref>Arti Rai, Patent Reform and the Progress of Innovation, http://www.scienceprogress.org/2011/03/patent-reform-and-the-progress-of-innovation/http://www.scienceprogress.org/2011/03/patent-reform-and-the-progress-of-innovation/ March 15, 2011</ref> |
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===Budget impact and U.S. Treasury liability=== |
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Section 18 of H.R. 1249 establishes a special "Transitional Program for Covered Business |
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Method Patents," which would create a special class of patents in the financial services field |
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subject to their own distinctive post-grant administrative review.<ref>H.R. 1249 §18(b).</ref> |
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"Covered business method patents" are defined as patents that claim "a method or corresponding |
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apparatus for performing data processing or other operations used in the practice, administration |
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or management of a financial product or service, except that the term does not include patents for |
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technological inventions."<ref>H.R. 1249 §18(g)(1).</ref> |
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According to constitutional law expert Jonathan S. Massey<ref>partner at Massey & Gail LLP |
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(www.masseygail.com), former law clerk to Supreme Court Justice William J. Brennan, Jr., and |
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Judge Abner J. Mikva, U.S. Court of Appeals for the D.C. Circuit.</ref> "Section 18 creates an |
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extraordinary review procedure [which] would allow banks and other financial services |
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companies to challenge the validity of patents that are the basis of infringement actions against |
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them. This provision supplements the two re-examination options already available to every |
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other patent holder -- the ex parte process, in which an infringer or competitor can anonymously |
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challenge a patent's validity, and the inter partes process, in which the challenger actively |
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participates in the re-examination. In effect, Section 18 bestows a unique benefit -- a third bite at |
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the apple -- on financial services companies defending infringement actions. It is special interest |
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legislation, pure and simple. Under Section 18, a person may not file a petition for the |
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transitional proceeding unless the real party in interest has been sued for patent infringement or |
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has been charged with patent infringement. This transitional procedure is repealed effective 4 |
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years from the date that the PTO issues implementing regulations."<ref>Massey, Johnathan S., |
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"Section 18 of H.R. 1249 Would Bail Out Banks and Expose the Treasure to Billion-Dollar |
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Liability", |
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http://saveourjobs.net/articles/wp-content/uploads/2011/06/Bank-Bailout-Provision.pdf, retrieved |
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June 16, 2011.</ref> |
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"Section 18 is a special, stop-gap administrative procedure designed to invalidate a targeted |
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group of patents that already have been confirmed through multiple examination and |
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re-examination proceedings. It creates grave constitutional questions. Section 18 would apply |
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retroactively to already existing patents. It would change the rules of the game, after the fact, and |
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reduce the enforceability of constitutionally protected forms of private property. The Supreme |
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Court has long ruled that governmental abrogation of patent rights effects a taking of property |
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and therefore triggers the Fifth Amendment obligation to pay just compensation.<ref>Cammeyer |
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v. Newton, 94 U.S. (4 Otto) 225, 234-35 (1876) ("an invention [secured by a valid letter-patent] |
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is property in the holder of the patent, and *** is as much entitled to protection as any other |
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property *** [¶] Public employment is no defense [sic] to the employee for having converted the |
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private property of another to the public use without his consent and without just |
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compensation.") (citations omitted); James v. Campbell, 104 U.S. 356, 357-58 (1881) ("That the |
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government of the United States when it grants letters-patent for a new invention or discovery in |
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the arts, confers upon the patentee an exclusive property in the patented invention which cannot |
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be appropriated or used by the government itself, without just compensation, any more than it |
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can appropriate or use without compensation land which has been patented to a private |
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purchaser, we have no doubt."); Crozier v. Fried, Krupp Aktiengesellschaft, 224 U.S. 290, 306 |
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(1912) (applying to the patent context "the well-established and indeed elementary requirements |
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in favor of property rights essential to be afforded in order to justify the taking by government of |
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private property for public use").</ref> The Court has also held that legislation depriving a |
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patent owner of its infringement remedy triggers an obligation on the part of the government to |
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provide just compensation.<ref>Richmond Screw Anchor Co., Inc. v. United States, 275 U.S. |
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331, 343-45 (1928).</ref> Accordingly, there is a very substantial risk that the patent holders |
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singled out by Section 18 could bring suits for compensation against the federal government, on |
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the ground that the special abrogation of their patents qualifies as a ‘taking' of private property. |
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The ‘just compensation' in such circumstances would be the fair market value of the |
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patent."<ref>United States v. 50 Acres of Land, 469 U.S. 24, 29 (1984) (just compensation is |
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"‘market value of the property at the time of the taking'") (quoting Olson v. United States, 292 |
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U.S. 246, 255 (1934)); see also Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 10 |
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(1984); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 474 (1973); |
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United States v. Commodities Trading Corp., 339 U.S. 121, 130 (1950); United States v. Petty |
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Motor Co., 327 U.S. 372, 377 (1946).</ref> <ref>Massey, Johnathan S., "Section 18 of H.R. |
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1249 Would Bail Out Banks and Expose the Treasure to Billion-Dollar Liability", |
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http://saveourjobs.net/articles/wp-content/uploads/2011/06/Bank-Bailout-Provision.pdf, retrieved |
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June 16, 2011.</ref> |
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"Section 18, in other words, represents a Wall Street bailout that could shift the cost of patent |
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infringement from financial services firms to the U.S. Treasury. The public would be forced to |
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pay the reasonable value of the patents, in the form of just compensation to the patent holders. |
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The same scenario played out only a few years ago. In 2007, the Congressional Budget Office |
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(CBO) analyzed the Sessions Amendment to S. 1145, the Patent Reform Act of 2007, which |
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purported to remove the infringement remedies available to the very same patent holders targeted |
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by Section 18. The CBO concluded that the Sessions Amendment worked a taking of private |
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property under the Fifth Amendment to the U.S. Constitution and therefore would subject the |
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government to claims for just compensation. The CBO stated that the Sessions Amendment had |
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budgetary implications and required that the legislation be ‘scored' for budgetary purposes. |
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Section 18 would have similar budgetary impacts. It is special interest legislation that would |
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require the public to pay for patent infringements committed by financial services |
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firms."<ref>Massey, Johnathan S., "Section 18 of H.R. 1249 Would Bail Out Banks and Expose |
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the Treasure to Billion-Dollar Liability", |
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http://saveourjobs.net/articles/wp-content/uploads/2011/06/Bank-Bailout-Provision.pdf, retrieved |
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June 16, 2011.</ref> |
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Proponents of Section 18 argue it will help weed out a number of bad patents issued by the |
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Patent and Trademark Office in the 1990s and 2000s. |
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===Other Issues=== |
===Other Issues=== |
Revision as of 21:42, 20 June 2011
The America Invents Act (S. 23 & H.R. 1249), previously called the Patent Reform Act of 2011, are two similar[1] bills in the two houses of the U.S. Congress. S.23 was introduced in the 112th United States Senate on January 25, 2011 by Senator Patrick Leahy (D-VT) who was joined by seven co-sponsors (all from the Judiciary Committee) that include Senators Coons (D-DE), Grassley (R-IA), Hatch (R-UT), Klobuchar (D-MN), Kyl (R-AZ), Lieberman (I-CT), and Sessions (R-AL). The bill was referred to the Senate Judiciary Committee, which unanimously approved the bill, and was passed by the United States Senate on March 8, 2011, by a vote of 95–5. The bill proposes changes in United States patent law[2] and closely resembles previously proposed legislation in the Senate in its previous session (S. 515, see the Patent Reform Act of 2009). H.R. 1249: was passed by the House Judiciary Committee on April 14, 2011, by a vote of 32-3.[3] The America Invents Act represents the fourth consecutive congressional session attempt for the first major change of the U.S. patent system since 1999, when the American Inventors Protection Act was enacted.
Proposed changes
Opposition
The proposed bill, H.R. 1249, revises and expands opposition procedures. The bill retains exisiting ex parte reexamination,[4] adds preissuance submissions by third parties,[5] expands post-grant inter partes reexamination and renames it inter partes review,[6] and adds post-grant review.[7] Some of these are very lengthy and costly proceedings.[8] Through ex parte reexamination in the USPTO, a well-funded infringer can litigate a startup company into submission (as has actually happened), forcing the startup to sell its patents to the infringer, as described in the Impact of the Changes section below. H.R. 1249 tilts the playing field further in favor of the well-funded infringer by providing the infringer with additional tools to maximize its leverage against a startup owning patented technology. These tools allow the infringer to increase the cost of post-grant opposition with expanded discovery,[9] to file multiple oppositions,[10] and to reduce the risk that a startup's patent infringment suit will be heard in federal court before the startup's financial resources are exhausted in the opposition.[11] These are discussed in the Post-Grant Opposition section below.
Proponents of H.R. 1249 argue that the bill may even the playing field by removing the tricks a the well-funded infringer can currently use against a startup owning patented technology.
First to file and grace period
Proposed law would switch U.S. patent priority from the present "first-to-invent" system to a "first-to-file" system. The proposed legislation also modifies the prior art definitions of the patent law. Acts and prior art that bar a patent will include public use, sales, publications, and other disclosures available to the public as of the filing date, other than publications by the inventor within one year of filing (inventor’s “publication-conditioned grace period”), whether or not a third party also files a patent application. Applicants that do not publish their inventions prior to filing will receive no grace period. The proceedings at the U.S. Patent Office for resolving priority contests among near-simultaneous inventors who both file applications for the same invention ("interference proceedings") are repealed, because priority will be determined based on filing date. An administrative proceeding—called a “derivation” proceeding, similar to that currently used within some interference proceedings is provided to ensure that the first person to file the application is actually an original inventor and that the application was not derived from another inventor.[2]
Additional proposed changes
The America Invents Act as amended prior to cloture filed on March 3, 2010 proposes additional changes to current patent law, including:[2]
- Tax strategy inventions. Provides that any strategy for reducing, avoiding, or deferring tax liability, whether known or unknown at the time of the invention or application for patent, shall be deemed insufficient to differentiate a claimed invention from the prior art.
- False Marking. Would eliminate false marking lawsuits except for ones filed by the US government or filed by a competitor who can prove competitive injury.
- Filing by other than inventor. Would enable an entity to file an application on behalf of an inventor who assigned, or is under an obligation to assign, the invention rights to the entity, without seeking the inventor's execution of the application.
- Oath and Declaration. Would make it easier for a corporation to file a substitute inventor's oath when the inventor cannot be reached or is non-cooperative.
- Best Mode. Although an inventor will still be required to “set forth” the Best Mode for accomplishing the invention, the bill would exclude failure to disclose a Best Mode from being used as a basis for invalidating an issued patent.
- Reports to Congress. Requires within one year of enactment that (a) the Small Business Administration report on effects on small businesses of repealing the invention date-based system of priority and transitioning to the filing-date-based system; (b) the USPTO report on the operation of prior user rights in selected countries in the industrialized world.
USPTO practice changes
- Fee Setting Authority. The USPTO would be given authority to adjust its fees in a way that "in the aggregate" recover the estimated costs of its activities.
- "Fee diversion". Provides a special USPTO Public Enterprise Fund from paid-in user fees, ending fee "diversion" from the Office.
- Review of inter partes reexamination. Would deny the right of de novo review of USPTO decisions in inter partes reexaminations in D.C. Federal District Court, making direct appeal to the Federal Circuit the only path for judicial review in inter partes reexamination cases. Anomalously, the legislation leaves intact the right of the Patent Office (acting through the Board of Patent Appeals and Interferences) to sandbag a patent owner with a "new ground of rejection" at the last stage of intra-Patent Office proceedings, but denies the patent owner any responsive or reciprocal right to introduce evidence in rebuttal.
- Prioritized examination. Provides for prioritized examination for technologies important to American competitiveness such as “green technologies.”
- Disclosure on USPTO's "Special Dispatch". Require the USPTO to disclose the length of time between the commencement of each inter-partes and post-grant review and the conclusion of that review.
- Third-party submission of prior art. Codifies existing regulation for third-party submission of prior art in published application by extending the period allowed for such submissions in 37 C.F.R § 1.99 from two months to six months after publication.
Advocacy for and against
Opponents of H.R. 1249 note that startup companies, not established companies, drive net job growth in the U.S. economy.[12]. A 2010 study by the Kauffman Foundation[13] found that “net job growth occurs in the U.S. economy only through startup firms". The study reveals that, both on average and for all but seven years between 1977 and 2005, existing firms are net job destroyers, losing 1 million jobs net combined per year. By contrast, in their first year, new firms add an average of 3 million jobs. Further, the study shows, job growth patterns at both startups and existing firms are pro-cyclical, although existing firms have much more cyclical variance. Most notably, during recessionary years, job creation at startups remains stable, while net job losses at existing firms are highly sensitive to the business cycle. " 'These findings imply that America should be thinking differently about the standard employment policy paradigm,' said Robert E. Litan, vice president of Research and Policy at the Kauffman Foundation. ‘Policymakers tend to focus on changes in the national or state unemployment rate, or on layoffs by existing companies. But the data from this report suggest that growth would be best boosted by supporting startup firms.' "[14]
Opponents of H.R. 1249 contend that the bill will lead to results similar to other nations' patent systems on which the bill is modeled--market incumbents will become further entrenched, the rate of startup formation will fall to levels in other countries, and access to angel and venture capital will fall to the levels of other countries, as described in the Impact of the Changes section below. A startup which relies on patents for protection from competitive risk, will, under H.R. 1249, lose the protections of today's law to assemble the capital, strategic partners, and time for R&D and testing. The startup, exposed to the risk of copying by an established player in the marketplace, will be unable to attract venture capital, and so will lack the financial resources necessary to commericialize the startup’s invention and grow the company. The weakening of patent protection diminishes incentives for investments and development.[15]
In addition opponents of the bill point out that the proposed revisions create greater options for accused infringers, and weaken the rights of patentees,[16][17][18][19][20] and that patent reform should remain in the hands of the court system. Opponents argue that patent reform should be confined to administrative reforms at the USPTO.[21] Currently the average duration of initial examination of a patent, i.e. from filing until issuance, is 3 years and 10 months.[22] The time, effort and money that will be spent after issuance under H.R. 1249 on inter partes review and post-grant review would be better spent improving initial examination.[23] According to patent attorney and reexamination specialist Taraneh Maghame, “the root of the problem trying to be addressed by the reexmaination process could be better solved if quality patents are issued in the first instance.” [24]
Proponents of the bill suggest that large technology companies are subject to an unprecedented wave of patent lawsuits, stifling innovation and creating an overburdened and lethargic patent system.[25] Advocates for the America Invents Act argue that it will create jobs, bolster innovation, streamline the patent system, reduce patent litigation, and keep the U.S. competitive globally.
Number of patent disputes
Organizations supporting the bill claim that the number of patent lawsuits has increased dramatically in the past few years.
The Federal Judicial Statistics document that the number of U.S. patent lawsuits as a percentage of total patents has not changed significantly over the past two decades and remains at approximately 1.5 percent of all patents issued with 93 trial patent cases annually in a system with 1.8 million active patents.
First to file and grace period
Proponents of this change submit that it would simplify the application process and bring U.S. patent law into better harmony with the patent law of other countries, most of which operate on the "first-to-file" system. Proponents also claim that it would eliminate costly Interference proceedings at the USPTO and reduce U.S. applicants’ costs in seeking patent rights outside of the United States.
Opponents contend that a "first-to-file" system favors larger firms with well-established internal patenting procedures, patent committees and in-house attorneys over small business inventors. They show that, in a novel and perverse way found in no other country, the Act would weaken patent protection only in America.[26][27] Opponents also submit that it will (i) cause loss of patent rights due to new prior art published after the invention date but before the filing date, (ii) weaken the current grace period so it cannot be relied on, compelling inventors to behave as if there were no grace period,[28] (iii) replace "interferences" with costly derivation proceedings, which are generally even more expensive than interferences,[29] (iv) create a “race to the Patent Office” with every new idea, increasing the number of patent applications filed, with the attendant costs in attorney fees and diversion of company personnel to patent application preparation,[30] (v) increase examination backlogs at the USPTO,[31] (vi) do nothing to reduce U.S. applicants’ costs of acquiring patents outside of the U.S., and (vii) decrease average patent quality.[32][33][34][35][36]
Opponents also note that the partial harmonization that would be effected by the America Invents Act has very little economic value. First, the key issue in any patent validity or infringement inquiry is "claim construction," the process of determining what a patent covers. The process of claim construction is rather different under U.S. law than in any other jurisdiction, and as long as this difference remains, any benefit of harmonization is likely very small. Second, note opponents, unless the law is identical (for example, as it is among the 50 United States states), any inquiry must be resolved on a country-by-country basis. Opponents note that in Europe, where the European Patent Convention narrowly confines the differences between European national patent laws, it is still the case that one must get a separate opinion from an attorney in each European member state. Even small differences in law are sufficient to defeat any benefit of harmonization, and the Act merely proposes to go "halfway" toward harmonization, rather than adopting the law of another jurisdiction in its entirety.
The United States Government is currently negotiating with other nations at the World Intellectual Property Organization to gain a one-year grace period for disclosure of patentable materials equal to that in the U.S. As a trade-off to gain this benefit, the U.S. proposes to shift to a first-to-file system. If Congress unilaterally makes this concession, the U.S. is unlikely to secure the grace period provision from other countries.
In February 2011, the EU "...said ... it is facing an "innovation emergency" in science and industry and is still trailing far behind the United States and Japan." [37] [38] They also point out the fact that we would be harmonizing with the more stagnant economies of Europe[39] and Japan, not the more competitive large and growing economy of China. China is not likely to harmonize according to recent reporting.[40][41] The patent reform bill of 2007, which the current bill closely resembles, was analyzed by the Deputy Director of IP division of Beijing High People's Court, Senior Judge, and he found that that the bill "... is friendlier to the infringers than to the patentees in general as it will make the patent less reliable, easier to be challenged and cheaper to be infringed. It is not bad news for developing countries which have fewer patents. Many of the Chinese companies are not patent owners in the U.S. market and their products are often excluded from the market because of patent infringement accusations. This bill will give the companies from developing countries more freedom and flexibility to challenge the relative US patent for doing business in US and make it less costly to infringe." [42]
Opponents note that the bill would replace about 100 interference disputes per year under today's law (0.01% of applications filed per year) with some unknown number of "derivation" proceedings when two inventors file applications at about the same time, and an unknown number of derivation showings that an applicant would have to make to remove prior art. The purpose of a derivation proceeding is to prove to the USPTO that the other applicant (defendant) derived (copied) the invention from the plaintiff. Evidence of derivation will be much harder to establish than evidence of invention date under today's first-to-file regime. Opponents note that the bill's proponents have not even acknowledged these costs, let alone estimated them. Some opponents predict that changing from first-to-invent to first-to-file will create much stronger economic incentives for industrial espionage and hacking[43] due to the fact that the original inventor will rarely know nor have compelling evidence of the theft. Absent the evidence, under first-to-file, the theft will succeed — unlike under first-to-invent.
The bill refers to the new regime as "First-Inventor-to-File (FITF)." This new regime operates differently than the FTI regime in the US and the various FTF regimes in place in the rest of the world. An analysis of the differences between FTI, FTF, the original FITF, and the regime in the current bill was performed for some 200 different typical fact patterns involving the actions and timing of two different inventors in terms of whether and how each would publish or file patent applications. The comparison demonstrates the different outcomes that can occur under each of the four different regimes.[44]
It was found that the proposed new regime behaves more like a new and unique kind of patent system with characteristics of both the FTI and FTF regimes, rather than a harmonized system sharing characteristics of both.[45]
Opponents point out that under First-to-Invent, a company with extensive resources can choose to practice First-to-File, by simply racing to the patent office as soon as every invention is conceived, eliminating any need to keep records of invention conception. Meanwhile, a company with limited resources can take still utilize First-to-Invent, only filing patents that matter after funding is obtained. Under First-(Inventor)-to-File, the reverse is not true: all parties, regardless of their resources, must adhere to “race to the patent office”. This places small entities at an enormous disadvantage to large entities. Indeed, it is a key reason why no other nation has anything close to the number of startups as the US.
There is a question of whether changing to FTF would be constitutional. Article I, Section 8 of the Constitution states: “To promote the Progress of ... useful Arts, by securing for limited Times to ... Inventors the exclusive Right to their respective ... Discoveries.” The term "inventor" means "the first to invent." "To invent" means "to create something that has not existed before." Therefore, by the standard definitions of our language, adoption of FTF would require amending the constitution. All peer-reviewed papers published in scholarly journals have found this or similar problems.[46][47][48]
Canada changed from FTI to FTF in 1989 and experienced a measurable "adverse effect on domestic-oriented industries and skewed the ownership structure of patented inventions towards large corporations, away from independent inventors and small businesses." [49] A 2010 study found that "long-term returns in the Canadian venture capital industry are such that capital has fled the market."[50]
Definition of jurisdiction of the Patent Trial and Appeal Board
Proposed § 135, is the basis for derivation proceedings. As drafted, the bill seems to repeat a mistake made in 1952 that was not corrected until 1984.
Under the original 1952 Act, there were two separate tribunals, the Board of Patent Appeals and Board of Patent Interferences. The 1952 Board of Interferences didn't have direct jurisdiction to determine patentability. This created jurisdictional problems—in most interferences, the dispositive issue is that one party isn't entitled to a patent at all. But the 1952 Act did not clearly give the Board of Interferences jurisdiction to decide patentability.
The Board labored for decades to define a workable scope of jurisdiction for issues "ancillary to priority."
This was fixed by a statutory amendment in 1984, that combined the two Boards and gave the combined Board jurisdiction to decide all issues of patentability and priority.
S.23 proposes to only give the Patent Trial and Appeal Board jurisdiction to decide derivation.
Thus, in the typical case where both issues of patentability and derivation are present, the Board will be in a difficult spot, unable to exercise full jurisdiction over both parts of the case simultaneously. The proceeding may need to be bifurcated, or some other resolution. Perhaps this problem has a solution, perhaps a further amendment will be required. Nonetheless, this demonstrates the lack of careful attention to history and lack of understanding of administrative law that pervades drafting of the bill.
Judicial review of reexamination decisions
Opponents note that the bill contains a provision that would deny the right of patent owners to obtain judicial review of adverse USPTO decisions in ex parte patent reexaminations by civil action in district court – a right that has existed under 35 U.S.C. § 306/ § 145 since the inception of reexamination in 1980. They contend that abolishing this right will leave direct appeal to the Federal Circuit as the only judicial recourse – an intolerable scenario for patent owners who need to rely on evidence that was unavailable during the administrative appeal stage.[51] Opponents contend that this provision will exacerbate ex parte reexamination abuses by creating an unprecedented end-run around Federal District Courts in potentially all patent disputes. They warn that alleged infringers would simply file ex parte reexamination requests with USPTO, receive a final agency decision subject only to Federal Circuit review, essentially bypassing Federal courts. Opponents fear that given the deference the Federal Circuit must accord the agency (Zurko), large number of prospective/alleged infringers would choose this new favorable path to challenge a patent, overwhelming the USPTO, causing much lengthier delays in reexamination and holding up patentees' patent rights for years.
Post-grant opposition
Advocates argue that allowing a challenge of a patent in the first year after the issuance or reissuance of a patent will improve patent quality by allowing third party inputs. Opponents note that: (a) inter partes review under H.R. 1249[52] allows a third party to challenge the validity of any claim(s) in a patent *after* the first year; (b) reexams are in fact used, not as an alternative to litigation, but rather as a supplement to litigation. In FY2008, 62% of current inter partes reexams and 30% of ex parte reexams were simultaneously in litigation;[53] (c) predatory corporations can and do file multiple post-grant oppositions against startup companies for the purpose of inflicting financial pain and through this practice have successfully extracted patent licensing and purchase agreements on favorable terms;[54] (d) the existing inter partes process in a contested case now takes 34 to 53 months for an un-appealed reexam (assuming no “rework” by the patent office and no secondary appeals to the BPAI, the Federal Circuit, or the Supreme Court), and 5 to 8 years for appealed cases.[55] When Congress created inter partes reexamination, it directed the USPTO to conduct these reexaminations with "special dispatch."[56] H.R. 1249 expands the existing inter partes procedure, adding discovery and a hearing in the Patent Trial and Appeal Board. Consequently, under H.R. 1249, pendency of the inter partes procedure will likely increase, despite the legislative fiat requiring 18 month disposition;[57] and (e) H.R. 1249 all but requires a federal district court to stay a patent infringement suit copending with an inter partes review.[58] Because of the enormous costs and long pendency of inter partes review, the grant of a stay in a copending infringement suit can effectively be "game over" for the patent owner.[53]
Changes to current law
The inter partes review provisions of H.R. 1249 allow a well-funded infringer to inflict financial pain on a relatively less well-funded patent owner, e.g. a startup company, research institution or independent inventor, and so gain leverage in licensing negotiations or patent infringement settlement negotiations. First, H.R. 1249 introduces discovery, for the first time, into inter partes reviews. Discovery consists of "(A) the deposition of witnesses submitting affidavits or declarations; and (B) what is otherwise necessary in the interest of justice."[59] With the addition of discovery, inter partes review will become a very expensive proceeding. The PTO interference proceeding, an administrative proceeding with scope similar to an inter partes review and which allows depositions, costs, on average, $500,000.[60] Second, if $500,000 is insufficient to extract favorable licensing terms, the infringer can up the ante by filing multiple requests for inter partes review. While current law prohibits multiple inter partes reexaminations of a single patent,[61] under H.R. 1249, these are permitted. It is up to the USPTO Director to determine the manner in which multiple inter partes reviews involving a single patent proceed.[62] H.R. 1249 does not specify a standard or procedure for making this determination. If the startup owns multiple patents, the infringer can file an inter partes review against each of them. It is irrelevant whether the infringer is practicing these patented inventions since the infringer's purpose is not to gain substantive review of the patents but to burden the startup with the legal cost of defending them. Microsoft successfully used this tactic to extract favorable terms from Avistar, as described below.
The post-grant review procedure of H.R. 1249 is similarly expensive. It allows submission of factual evidence and expert opinions,[63] discovery,[64] and an oral hearing at the request of either the party seeking review or the patent owner.[65] None of these are available in the current reexamination regimen, which restricts submissions to patents and printed publications.[66]
Under H.R. 1249, a post-grant challenge filed within 12 months of patent issuance is called a post-grant review. A challenge filed thereafter is called an inter partes review.
Impact of the changes
Opponents of H.R. 1249 assert that the impact of the changes to the current law will be to effectively neuter the U.S. patent system. Patents owned by startup companies, research institutions, and independent inventors ("startups") will be unenforceable against large corporations. Avistar Communications Corporation's encounter with Microsoft illustrates how this plays out. In 2007 Avistar was a startup developing desktop videoconferencing and online collaboration tools. Avistar had 29 U.S. patents, a number of pending U.S. patent applications, and numerous foreign patents and applications. Avistar approached Microsoft to negotiate a license to Avistar's patented technology. Microsoft wanted a license on terms Avistar would not agree to, and decided to use post-grant opposition in the PTO to litigate Avistar into submission. After six months of licensing negotiations, Microsoft, in February and March 2008, requested reexamination of each of Avistar's 29 U.S. patents.[67] Defending a single patent in a reexamination proceeding "routinely costs a patent owner hundreds of thousands of dollars in legal fees."[68] To pay the legal expenses associated with the reexaminations, Avistar, in April 2008, announced that it would cut its work force by about 25 percent.[69] This was not enough. With legal costs piling up, Avistar was forced to sell substantially all of its U.S. patents and patent applications, and related foreign patents and patent applications to Intellectual Ventures ("IV"). IV, originally called the Patent Defense Fund, was founded in 2000 by two-ex Microsoft employees. The idea was that IV would provide a way for Microsoft and other large technology companies to protect themselves against patented inventions. "Initially, each company ... was asked to pony up $50 million. The plan was that IV would then go out and buy patents that were knocking dangerously around the marketplace, and investors would get a license to the entire portfolio—effectively immunizing them from the danger of intellectual property litigation." [70]. IV has raised over $5 billion.[71] Avistar sold its patent portolio to IV in January 2010, taking a grant-back license so it could continue to sell its patented products.[72]
Avistar’s encounter with Microsoft reduced the price of Avistar stock 61%,[73] and Avistar no longer owned the intellectual property it spent years developing. Microsoft imposed unbearable costs on Avistar using the reexamination procedure available under current law, i.e. without the benefit of the even costlier post-grant opposition procedures created by H.R. 1249.
The use of reexamination, or the threat of its use, in licensing negotiations or in patent infringement litigation is common. “[G]amesmanship of the reexamination process has, in the view of some, become more the rule than the exception. Reportedly it has become ‘standard procedure’ that a defendant in patent litigation ‘take an aggressive stance by saying it plans to request a re-exam on the patent-in-suit or even all’ of the plaintiffs patents. The threat of reexamination is then used as leverage in licensing negotiations, intimidating patent-holders into settling out of court for lower amounts than those to which the value of their patents might entitle them.”[74] The practice is widespread and growing. Reexamination requests from companies accused of patent infringement have recently more than tripled. [75] “Ironically, Congress intended that the reexamination process should have just the opposite effect: "Patent office reexamination will greatly reduce, if not end, the threat of legal costs being used to 'blackmail' such [patent-] holders into allowing patent infringements or being forced to license their patents for nominal fees." [76]
Critics fear that the Act will accelerate the decline of the U.S. as an industrial power because it will prevent startups from raising capital. To understand why this is so, one needs to understand the basic life cycle of a startup.[77] In the first step of this life cycle, an inventor or group of inventors conceives the invention. Second, the inventors undertake limited prototyping and testing sufficient to convince themselves and potential investors that the invention will work, not just in the lab, but in practice. Third, the inventors research the market and write a business plan estimating (a) a revenue stream based on forecast demand for the envisioned product at a specific target price, and (b) the capital needed to reach the break-even point, i.e. the point in time when revenues will equal expenses so that the startup will be self-funding. Fourth, potential investors scrutinize the business plan including evaluating competitive risk. By definition, a startup is a new entrant to the marketplace. The startup has no established brand, and no established sales, distribution, or service channels. It is only after this point that an investor typically invests, and thus this is the point at which a typical inventor has a sufficient conception of the invention and funding to be able to file a patent application.
In contrast, in Europe, the practice is that investors will not talk to inventors until before the "Fourth" step of the preceding paragraph, that is, before funding exists to pay a patent attorney.
In many cases, the startup will be facing off against large established players with established brands and established sales, distribution and service channels. If an established player can reverse engineer the startup's product, and produce and market an equivalent product, the established player will win in the marketplace against the new entrant. If this is the likely outcome, potential investors will not risk their money funding the startup's development of the envisioned product. Without this funding, the product will not be developed. The startup will not get off the ground.
This is where patents play a critical role. The inventor, in exchange for fully disclosing the invention in the specification of the patent application (which the USPTO publishes[78]), receives exclusive rights to the invention in the U.S. for a limited period of time. During that period of time, the patent owner can theoretically sue an infringer and exclude an infringing product from the U.S. Thus, the patent protects the investor's investment in the startup from competitive risk. This protection is, in the minds of most investors, critical. 67% of venture capital funds require an issued patent or a pending patent application that is likely to issue, before they invest.[79]
If H.R. 1249 becomes law, many investors who currently fund startups through venture capital funds and angel networks, will invest their money elsewhere. Startups will be a losing business proposition. The result will be that the U.S. will have to rely primarily on major corporations to develop inventions. This is a problem. According to Peter N. Detkin, Founder and Vice-Chairman of Intellectual Ventures,a company which has amassed over 30,000 patents,[80] "[c]orporations are not a source of inventions"[81], because corporations focus and spend dollars, not on research, but on development. Since corporate effort is focused on developing the next generation of a product, the scope of any invention is limited.[82] According to Detkin, "60% of patents originate from small and individual inventors, universities, and research labs."[83] If H.R. 1249 becomes law, these entities, the primary source of inventions, will be unable to raise funding to commercialize their inventions.
Proponents of H.R. 1249 argue that revision of both post grant opposition and interference will help US inventors. They point out that a patent that has survived a post-grant review will be stronger than one without. Neither side has put forward a cost-benefit balance showing that the added strength of these patents will compensate for the loss of access to venture capital, though the venture capitalists that have opined on the likely balance have concluded that the post-grant review will reduce access to capital more than it increases patent strength.[84]
Preissuance submissions
H.R. 1249 §7 allows a third party to submit documents for consideration in an examination of another party's patent application. Seemingly innocuous, this is another tool a well-funded infringer can use to maximize its leverage against a startup owning patented technology. If this provision had been law in March 2008 when Microsoft filed reexamination requests against 29 of Avistar's patents, Microsoft could have used this provision to inflict additional financial pain on Avistar. At the time, Avistar had seven U.S. patent applications pending.[85] Assuming that a single one of these pending applications had not yet progressed to one of the milestones listed in H.R. 1249 §7, i.e. date of allowance, or the later of a first rejection and 6 months after publication, Microsoft would have been able, without risk, to file an unlimited number of documents in that application. Microsoft would have had to provide only "a concise description of the asserted relevance of each document". Avistar's patent counsel would have to had to review each document for relevance against each pending claim in that application. Further, Avistar's patent counsel would likely have elected to disclose all the submitted documents in each of the pending applications for two reasons: (a) to fulfill the duty of disclosure under 37 CFR 1.56, and (b) to preclude Microsoft from later arguing inequitable conduct in not making this disclosure. Inequitable conduct and failure to fulfill the duty of disclosure are each grounds for rendering a resulting patent unenforceable. If Microsoft chose to file thousands of pages of documents, the cost to Avistar would have been significant.
Patent Office fee-setting authority
The bill allows the Patent Office’s fee setting authority. Under current law, the Patent Office is required to set most of its fees “for all other processing, services, or materials ... to recover the estimated average cost to the Office of such processing, services; or materials.” The Patent Reform Act removes this requirement for cost-recovery fee levels, as well as any other meaningful check and balance, and gives the Patent Office authority to set any individual fee so long as total fees, “in the aggregate [are] set to recover the estimated cost to the Office” for examination. All meaningful standards for delegation of fee-setting authority are removed. For example, the Patent Public Advisory Committee is given only the power to comment on fee-setting, not the power to approve or disapprove. The statute appears to have been drafted with insufficient attention to laws that provide regulatory review, for example, oversight by the Small Business Administration under the Regulatory Flexibility Act, 5 U.S.C. §§601et seq. the statute that protects small entities from excessive regulation.
For years, the Patent Office has sought to cap the complexity of patent applications, and thus the complexity of inventions for which patents can be sought.
The most recent example is the 2006-2008 set of five rule-making packages promulgated by the Patent Office that would have put a cap of no more than three independant claims, no more than 25 references in an IDS, and the like. The Office of Management and Budget directed the Patent Office to withdraw these rules because they violated the Paperwork Reduction Act,[86] and the federal courts struck them down because the Patent Office had overreached its authority.[87]
Similarly, in 2003, the Patent Office had sought to impose an exponentially-escalating fee structure for claims in a patent applications; the Patent Office’s rationale document expressly conceded an intent to modify “applicant behavior,” to discourage full patenting of complex inventions.
A recently-departed senior PTO official, who had been one of the advocates and architects of the 2006 rules, recently stated that the Patent Office’s plan was indeed to use this fee-setting authority to limit inventors’ ability to obtain patents on complex inventions, that the Patent Office would use its new fee setting authority to force applications into the PTO’s definition of a “well-drafted application.”[88]
Budget impact and U.S. Treasury liability
Section 18 of H.R. 1249 establishes a special "Transitional Program for Covered Business Method Patents," which would create a special class of patents in the financial services field subject to their own distinctive post-grant administrative review.[89] "Covered business method patents" are defined as patents that claim "a method or corresponding apparatus for performing data processing or other operations used in the practice, administration or management of a financial product or service, except that the term does not include patents for technological inventions."[90]
According to constitutional law expert Jonathan S. Massey[91] "Section 18 creates an extraordinary review procedure [which] would allow banks and other financial services companies to challenge the validity of patents that are the basis of infringement actions against them. This provision supplements the two re-examination options already available to every other patent holder -- the ex parte process, in which an infringer or competitor can anonymously challenge a patent's validity, and the inter partes process, in which the challenger actively participates in the re-examination. In effect, Section 18 bestows a unique benefit -- a third bite at the apple -- on financial services companies defending infringement actions. It is special interest legislation, pure and simple. Under Section 18, a person may not file a petition for the transitional proceeding unless the real party in interest has been sued for patent infringement or has been charged with patent infringement. This transitional procedure is repealed effective 4 years from the date that the PTO issues implementing regulations."[92]
"Section 18 is a special, stop-gap administrative procedure designed to invalidate a targeted group of patents that already have been confirmed through multiple examination and re-examination proceedings. It creates grave constitutional questions. Section 18 would apply retroactively to already existing patents. It would change the rules of the game, after the fact, and reduce the enforceability of constitutionally protected forms of private property. The Supreme Court has long ruled that governmental abrogation of patent rights effects a taking of property and therefore triggers the Fifth Amendment obligation to pay just compensation.[93] The Court has also held that legislation depriving a patent owner of its infringement remedy triggers an obligation on the part of the government to provide just compensation.[94] Accordingly, there is a very substantial risk that the patent holders singled out by Section 18 could bring suits for compensation against the federal government, on the ground that the special abrogation of their patents qualifies as a ‘taking' of private property. The ‘just compensation' in such circumstances would be the fair market value of the patent."[95] [96]
"Section 18, in other words, represents a Wall Street bailout that could shift the cost of patent infringement from financial services firms to the U.S. Treasury. The public would be forced to pay the reasonable value of the patents, in the form of just compensation to the patent holders. The same scenario played out only a few years ago. In 2007, the Congressional Budget Office (CBO) analyzed the Sessions Amendment to S. 1145, the Patent Reform Act of 2007, which purported to remove the infringement remedies available to the very same patent holders targeted by Section 18. The CBO concluded that the Sessions Amendment worked a taking of private property under the Fifth Amendment to the U.S. Constitution and therefore would subject the government to claims for just compensation. The CBO stated that the Sessions Amendment had budgetary implications and required that the legislation be ‘scored' for budgetary purposes. Section 18 would have similar budgetary impacts. It is special interest legislation that would require the public to pay for patent infringements committed by financial services firms."[97]
Proponents of Section 18 argue it will help weed out a number of bad patents issued by the Patent and Trademark Office in the 1990s and 2000s.
Other Issues
Proponents have stated that our patent laws have not changed in 60 years, implying that it's time for a change. Opponents point out the existing patent regime's stability and its impact on America's lead in innovation. Opponents note that in areas of commercial law, stability is crucial, and that law should not be changed unless the benefits are easily demonstrated, and are greater than the costs, including the costs of disruption. Opponents note that the proponents have put forward no data whatsoever to demonstrate savings overall, only a few pinpoint issues that are of trivial magnitude.
Assertions that the existing laws are antiquated fail to recognize that there have been many bills modifying the laws over the past 60 years, and that court rulings have also caused a great deal of patent reform, particularly in the past 6 years.[98]
Critics of the bill have expressed concern that the administration has been guided by the same people who previously lobbied for patent reform on behalf of IBM and Microsoft. USPTO Director David Kappos represented IBM, and Marc Berejka (Senior Policy Advisor, Office of the Secretary, U.S. Department of Commerce) lobbied on behalf of Microsoft on these very issues.[99] Their appointments were a violation of the Obama Administration's "Revolving Door Ban."[100] The Secretary of Commerce, Gary Locke, to whom the USPTO reports, also has extensive ties to Microsoft.[101]
Opponents have raised the concern that the Law of Unintended Consequences could result in outcomes that cause the USA to lose its leadership position in innovation, particularly as a result of the adverse impact on small companies, who have not been represented in the negotiations leading up to this bill.[102] The complexity of the innovation ecosystem being beyond most legislative bodies' comprehension argues for small incremental changes that are less likely to cause harm in the manner that the well-intended Sarbanes–Oxley Act did.[103]
Organizations against
- Angel Venture Forum
- Patriotic Veterans, Inc.
- Family-Pac Illinois
- American Civil Liberties Union (ACLU)[104]
- American Innovators for Patent Reform
- American Institute for Medical & Biological Engineering[105]
- America Invents Act 2011 Organization[106]
- American Medical Association [107]
- Coalition for Patent Fairness (CPF)[108]
- Computer & Communication Industry Association[109]
- CONNECT
- Eagle Forum[110]
- Institute of Electrical and Electronics Engineers[111]
- International Federation of Professional and Technical Engineers[112]
- IP Advocate [113]
- The National Association of Patent Practitioners [114]
- The National Congress of Inventor Organizations
- The National Small Business Association [115][116]
- National Venture Capital Association (NVCA)[117][118]
- Patent Office Professional Association[119]
- Private Investors in Entrepreneurial Endeavors (PiPAC)
- The Professional Inventors Alliance[120]
- The Small Business Coalition on Patent Legislation[32][121]
- The TPL Group
- The Union of U.S. Patent Examiners[119]
- U.S. Business and Industry Council [122]
Organizations for
- The Coalition for 21st Century Patent Reform[123]
- Intellectual Property Owners' Association
- American Bar Association
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- ^ Steve Perlman's letter to Senator Feinstein
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- ^ a b Small Business Coalition on Patent Legislation letter to SBA Administrator, Dec. 15, 2009.
- ^ Startup companies' letter to Senate Leadership
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- ^ "Innovation and IP in Today’s Business Environment," a presentation by Steve Perlman, a prolific inventor and successful entrepreneur, on how the proposed legislation maps to the practice of invention.
- ^ The Rush to a First-to-File Patent System in the United States: Is a Globally Standardized Patent Reward System Really Beneficial to Patent Quality and Administrative Efficiency?, Minn. Journal of Law, Science & Technology, VOLUME 7 ISSUE 2 (May 2006)
- ^ "EU warns it lags behind in global innovation race", Seattle Times, Tuesday, February 1, 2011 (AP Story)
- ^ May 9, 2011 (Bloomberg) -- The U.K.'s patent system is “broken,” a group of small and medium-sized businesses said in a letter to Prime Minister David Cameron.
- ^ Europe's missing yollies (young leading innovators)
- ^ WSJ, 2/2/11: U.S. Firms, China Are Locked in Major War Over Technology
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- ^ Cybercriminals target corporate data, March 28th, 2011 by Trent Nouveau in TG Daily
- ^ The “Matrix” for Changing First-To-Invent: An Experimental Investigation into Proposed Changes in U.S. Patent Law (in Cybaris, An Intellectual Property Law Review, Volume 1, Issue 1, Spring 2010)
- ^ Comparison of the Current U.S. First-to-Invent System with the First-Inventor-To-File System Proposed in the Patent Reform Act of 2011 (S.23), 3/2/11, PatentlyO Blog
- ^ Article I and the First Inventor to File: Patent Reform or Doublespeak?, in IDEA—The Intellectual Property Law Review, Volume 50, Number 3 (2010)
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- ^ Compilation of all papers on FTF constitutionality published between 2001-2009
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- ^ H.R. 1249 §5 amends 35 U.S.C. §311
- ^ a b http://www.patentlyo.com/patent/2009/03/guest-post-hot-topics-in-us-patent-reexamination.html?cid=6a00d8341c588553ef011168d0dd50970c.
- ^ Avistar, 2009 Annual Report, p.F-26, http://files.shareholder.com/downloads/AVSR/1239617659x0x386332/36FFB1CC-FE65-4E85-B625-C7CF8BB4CDEB/2009_Annual_Report_FINAL.pdf, retrieved April 28, 2011.
- ^ http://www.iam-magazine.com/blog/IAMBlogInterPartesReexamWhitepaper.pdf.
- ^ 35 U.S.C. §314(c).
- ^ H.R. 1249 §7 amendment to 35 U.S.C. §316(a)(12).
- ^ H.R. 1249 §5 amendment to 35 U.S.C. §330(1).
- ^ H.R. 1249 §5 amendment to 35 U.S.C. §316(a)(6).
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- ^ 35 U.S.C. §317(a)
- ^ H.R. 1249 §5 amendment to 35 U.S.C. §315(d).
- ^ H.R. 1249 §5 amendment to 35 U.S.C. §322(a)(3)
- ^ H.R. 1249 §5 amendment to 35 U.S.C. §326(a)(5.
- ^ H.R. 1249 §5 amendment to 35 U.S.C. §326(a)(10).
- ^ 35 U.S.C. §301
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- ^ http://www.businessweek.com/magazine/content/06_27/b3991401.htm
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- ^ Decline of monthly mean closing stock price from February 2008, the month Microsoft initiated reexamination proceedings, to January 2010, the month Avistar sold its patents to IV.
- ^ Mercado, Raymond A. (2011). The Use and Abuse of Patent Reexamination: Sham Petitioning Before the USPTO. 12 Columbia Science and Technology Law Review 93.
- ^ Joseph Rosenbloom, The Reexamination Gamble, IP L. & Bus., July 1, 2008, at 31.
- ^ H.R. Rep. No. 96-1307, pt. 1, at 4 (1980), reprinted in 1980 U.S.C.C.A.N., at 6463.” quoted in Mercado, Raymond A. (2011). The Use and Abuse of Patent Reexamination: Sham Petitioning Before the USPTO. 12 Columbia Science and Technology Law Review 93, n66.
- ^ Nesheim, John L. (2000). High Tech Start Up, The Complete Handbook for Creating Successful New High Tech Companies, New York: The Free Press.
- ^ 35 U.S.C. § 122(b)
- ^ Patenting by Entrepreneurs: The Berkeley Patent Survey, summary of major findings available at http://www.patentlyo.com/patent/2010/07/patenting-by-entrepreneurs-the-berkeley-patent-survey-part-iii-of-iii.html, retrieved May 1, 2011.
- ^ http://www.intellectualventures.com/ProductsServices/Licensing.aspx, retrieved May 2, 2011.
- ^ http://www.intellectualventures.com/libraries/article_reprints/wsba-presentation-3-08-rev-9.sflb.ashx, p.3, retrieved April 29, 2011.
- ^ Ibid.
- ^ Ibid., p.8.
- ^ John Neis, Post-Grant Review-Our Next Nightmare? VC Perspective Medical Innovation & Business: Summer 2010 - Volume 2 - Issue 2 - p 43–45, http://journals.lww.com/medinnovbusiness/Fulltext/2010/06010/Post_Grant_Review_Our_Next_Nightmare__VC.8.aspx
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- ^ http://www.reginfo.gov/public/do/DownloadDocument?documentID=44055&version=4
- ^ Tafas v. Dudas, 541 F.Supp.2d 805, 86 USPQ2d 1623 (E.D. Va. 2008), reinstated sub nom. Tafas v. Kappos, 586 F.3d 1369, 1371, 92 USPQ2d 1693, 1694 (Fed. Cir. 2009)
- ^ Arti Rai, Patent Reform and the Progress of Innovation, http://www.scienceprogress.org/2011/03/patent-reform-and-the-progress-of-innovation/http://www.scienceprogress.org/2011/03/patent-reform-and-the-progress-of-innovation/ March 15, 2011
- ^ H.R. 1249 §18(b).
- ^ H.R. 1249 §18(g)(1).
- ^ partner at Massey & Gail LLP (www.masseygail.com), former law clerk to Supreme Court Justice William J. Brennan, Jr., and Judge Abner J. Mikva, U.S. Court of Appeals for the D.C. Circuit.
- ^ Massey, Johnathan S., "Section 18 of H.R. 1249 Would Bail Out Banks and Expose the Treasure to Billion-Dollar Liability", http://saveourjobs.net/articles/wp-content/uploads/2011/06/Bank-Bailout-Provision.pdf, retrieved June 16, 2011.
- ^ Cammeyer v. Newton, 94 U.S. (4 Otto) 225, 234-35 (1876) ("an invention [secured by a valid letter-patent] is property in the holder of the patent, and *** is as much entitled to protection as any other property *** [¶] Public employment is no defense [sic] to the employee for having converted the private property of another to the public use without his consent and without just compensation.") (citations omitted); James v. Campbell, 104 U.S. 356, 357-58 (1881) ("That the government of the United States when it grants letters-patent for a new invention or discovery in the arts, confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser, we have no doubt."); Crozier v. Fried, Krupp Aktiengesellschaft, 224 U.S. 290, 306 (1912) (applying to the patent context "the well-established and indeed elementary requirements in favor of property rights essential to be afforded in order to justify the taking by government of private property for public use").
- ^ Richmond Screw Anchor Co., Inc. v. United States, 275 U.S. 331, 343-45 (1928).
- ^ United States v. 50 Acres of Land, 469 U.S. 24, 29 (1984) (just compensation is "‘market value of the property at the time of the taking'") (quoting Olson v. United States, 292 U.S. 246, 255 (1934)); see also Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 10 (1984); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 474 (1973); United States v. Commodities Trading Corp., 339 U.S. 121, 130 (1950); United States v. Petty Motor Co., 327 U.S. 372, 377 (1946).
- ^ Massey, Johnathan S., "Section 18 of H.R. 1249 Would Bail Out Banks and Expose the Treasure to Billion-Dollar Liability", http://saveourjobs.net/articles/wp-content/uploads/2011/06/Bank-Bailout-Provision.pdf, retrieved June 16, 2011.
- ^ Massey, Johnathan S., "Section 18 of H.R. 1249 Would Bail Out Banks and Expose the Treasure to Billion-Dollar Liability", http://saveourjobs.net/articles/wp-content/uploads/2011/06/Bank-Bailout-Provision.pdf, retrieved June 16, 2011.
- ^ Dennis Crouch Testimony, “Review of Recent Judicial Decisions on Patent Law” in House Judiciary IP Subcommittee, March 10, 2011
- ^ "Critics raise concerns at Commerce," in Politico 11/2/09
- ^ EXECUTIVE ORDER: Ethics Commitments By Executive Branch Personnel
- ^ Gary Locke and Microsoft, in Knowledge Ecology International
- ^ After 4 sessions of Congress considering the Patent Reform Act, not a single practicing inventor has ever been allowed to testify before the Senate, and only one inventor has testified before the House (and he strongly opposed the Bill).
- ^ Two Views of Innovation, Colliding in Washington; NY Times, January 13, 2008, By John Markoff
- ^ Letter of 6/15/11
- ^ [2]
- ^ [3]
- ^ Letter of 6/14/11
- ^ "Patent bill hits resistance". Webpage. Politico. Retrieved Feb 27, 2010.
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- ^ CCIA Letter to Senators
- ^ Eagle Forum Letter by Phyllis Schlafly, "Death for Innovation"
- ^ IEEE-USA letter on S. 23 to Senator Leahy, February 15, 2011.
- ^ http://www.ifpte.org/downloads/news/manager/41c.pdf
- ^ IP Advocate on Patent reform
- ^ NAPP Statement on Patent Reform
- ^ NSBA June 7, 2011 Statement on H.R. 1249
- ^ "NSBA Letter to Senator Reid", February 15, 2011
- ^ Letter to House Judiciary leadership of June 14, 2011
- ^ Letter to Senators of March 3, 2011
- ^ a b Paul, Ryan (2008-02-12). "Patent examiners voice opposition to Patent Reform Act". Retrieved 2009-04-26.
The Patent Office Professional Association (POPA) and 13 other unions collectively sent letters (PDF) to legislators this week calling for the Senate to block the Patent Reform Act. POPA, which represents thousands of patent examiners, contends that provisions in the Act would significantly weaken the nation's economy and enable foreign companies to exploit American inventions.
- ^ "PIAUSA Position statement".
- ^ Coalition letter to Senator Reid, February 23, 2011.
- ^ Leahy patent bill: Litigation, not innovation
- ^ The Coalition for 21st Century Patent Reform, [4], January 25, 2011.