By Kevin E. Noonan —
Resistance to the U.S. Patent and Trademark Office’s new continuation and claims rules continues to grow (although how effective that resistance will be less than two weeks before the rules are implemented is a problematic question). The latest salvo comes from the Practising Law Institute’s Patent Blog, in the form of back-to-back posts by Gene Quinn (see "A Call to Action Against the Patent Office") and John White (see "Time to Get Involved & Stop the USPTO").
Mr. Quinn’s (at left) post speaks frankly of "revolution" and a "call to action." Lawsuits are recommended as the implement of choice in this fray, and in particular the lawsuit filed by GlaxoSmithKline in the Eastern District of Virginia last week (see "Horray! – (Finally) the Big Dogs Have Joined the Hunt"). Mr. Quinn agrees that pharma will be the hardest hit by the rules, but thinks that all high-tech patenting should be included in the list of technologies put at risk by the rules, including software.
Mr. Quinn points out that the Patent Office has asked the Court to wait until the night before the implementation deadline (fittingly, Halloween) to hear GSK’s motion for a TRO and preliminary injunction, clearly hoping that the Court will not be able to respond "on the spot" and, of course, then setting up its next argument that the new rules are a fait accompli and that granting GSK’s motion would prejudice those applicants who have already complied with the rules.
Mr. Quinn doesn’t think filing separate lawsuits will be effective (in the short term, at least), but he does think that others can help the Court understand the gravity of the situation and the equities involved in granting the preliminary injunction motion until the Court can consider the issues on the merits. He suggests that interested parties – everyone from individual inventors, small businesses, small cap, large cap, or Fortune 500 companies – should file amicus briefs with the Court to explain how the rules will negatively impact them. The idea is for the Court to recognize that this isn’t just one company disagreeing with the Patent Office, but that GSK’s suit represents a large, even overwhelming, proportion of those entities most interested and invested in patents and patenting.
Recognizing that some groups may not have the time or the wherewithal to effectively mount such as effort – and cautioning against a letter-writing campaign to the Court that may backfire – Mr. Quinn suggests that anyone having any arguments or evidence against the new rules send them to him at: gquinn@ipwatchdog.com. He asks for specifics, preferably with citations to relevant case law, statutes or the rules, and in any event, complete arguments rather than rants. Mr. Quinn proposes to use his blog to publicly vet the arguments and to make them available to others. Anonymity is offered but not required – after all, who (or what lawyer, at least) wouldn’t want to take credit for the argument that persuades the Court to rule in "our" favor?
Mr. White (at left) is kinder in some ways to the current Patent Office administration, positing that the negative effects of the new rules are merely unintended consequences. (As readers of Patent Docs will recognize, we feel that view is naïve – the Office cares about nothing other than reducing the backlog, and will do whatever it takes to do so.) He recognizes that the comments provided to the Office merely "softened the blow" of the new rules (and as hard as it may be to comprehend, the rules as originally proposed were even worse than the rules as promulgated this August). Like Mr. Quinn, Mr. White believes it’s time to "rally the troops" and "grab the pitchforks" (whether analogizing the Patent Office with Frankenstein or Dracula is not specified). His reasoning is the same as Mr. Quinn’s: not much time, and irrevocable loss of property rights.
Both authors correctly state the widespread beliefs of the vast majority of the patent bar (absent a few litigators who are willing to gut the patent system to kiss up to their patent-infringing clients): the new rules are an illegal grab of executive power without consideration to the limitations of the enabling statute, done with scant factual support and supported by specious arguments (sound familiar?). No one disputes that 20 years of Patent Office underfunding during an era of exponentially-increasing innovation (anyone at the PTO ever heard of Moore’s Law?) has left the Office with a crushing backlog, but what is misunderstood (or misrepresented) is that this represents innovation, and the new rules are willing to force applicants to abandon protection for that innovation to satisfy merely bureaucratic goals. Don’t be surprised if one-quarter to one-third of the Patent Office backlog of applications are abandoned in the next twelve months (which is precisely what the new rules are intended to encourage if not force applicants to do). And don’t be surprised if we start feeling the consequences in the next few years. Let’s hope some of that abandoned innovation doesn’t relate to new drugs that Americans will need as a large bolus of us get to the age where we wish we had all the pharmaceutical help we can get. The Patent Office will be content with reducing its backlog on the backs of those with such needs.
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