By
Donald Zuhn —

In
a letter sent to Speaker of the House Nancy Pelosi (D-CA), House Majority
Leader Steny Hoyer (D-MD), and House Minority Leader John Boehner (R-OH)
earlier today, Representatives Mike Michaud (D-ME), Don Manzullo (R-IL), Dana
Rohrabacher (R-CA), and Marcy Kaptur (D-OH) urged the House leaders to "remember
the importance of patent protections" as the House begins the process of
crafting legislation to promote job creation.  Noting the "persistently high"
unemployment rate and "slow economic recovery," the bipartisan group
of lawmakers sought "to underscore the importance of protecting U.S.
intellectual property standards as a way to help U.S. businesses and create U.S.
jobs."  According to the
letter's signatories, a key aspect of economic growth would be "strong
patent protections that ensure the patent application process is efficient and
fair for big and small companies alike."

The
four lawmakers expressed dissatisfaction with the House's last patent reform
effort, a controversial bill (H.R. 1908) that was passed by the House in
September 2007 (see "Patent
'Reform' Bill Passes House of Representatives").  Interestingly, that bill, which was
passed by a 220-175 vote, received strong support from Democrats (who voted 160-58
in favor of the bill) and little support from Republicans (who voted 117-60
against the bill).  Calling the
House's prior effort "misguided," the lawmakers noted that they had
"strong objections" to the bill because it "would not have
improved the quality of patents or reduced the cost of patent
litigation."  Instead, the
bill "would have increased uncertainty among patent holders; reduced
patent value; reduced investment in research and development; and, therefore,
further hindered the development of U.S. manufacturing."  The four lawmakers also noted that they
had opposed the House (H.R. 1260) and Senate (S. 515) bills introduced last
March (see "Senate and House Introduce New Patent Reform Legislation"),
saying that the bills were "troubling for a number of reasons."  Despite the efforts of Senator Dianne
Feinstein (D-CA) to rework the damages provision in S. 515 to codify the
fifteen Georgia-Pacific factors (see "Senate 'Patent
Reform' Bill (S. 515) Voted out of Judiciary Committee"),
the letter's signatories contend that "there are still several hurdles to
an acceptable bill."

According
to the lawmakers, the primary "hurdles" are an apportionment-centric
system of patent damages that "ignores the fact that current patent
protections adequately take into account apportionment concerns and would
reduce the overall value of patents," and an expansion of administrative
challenges to patents (via post-grant review and expanded inter partes reexamination) that "seem[s] wholly unnecessary,
given [that the changes to the patent system] will not reduce patent litigation
and that the U.S. Patent and Trademark Office (PTO) already has a reexamination
process."  The four lawmakers
also believe that the expansion of administrative challenges will "allow
foreign competitors to easily and cheaply challenge U.S. patents."  Other possible hurdles include the move
to a first-to-file system and changes to willful infringement.  The lawmakers contend that "Congress
should hear from each affected group and consider their input carefully through
open hearings."  It should be
noted that both the Senate and House held hearings on patent reform last year,
the Senate Judiciary Committee holding its hearing on March 10 (see "Senate Judiciary Committee
Holds Hearing on Patent Reform")
and the House Judiciary Committee holding its hearing on April 30 (see "House Judiciary Committee
Holds Hearing on Patent Reform").

The
letter concludes by stating that:

Reliable intellectual property
protections are critical to incentivizing American companies to research,
develop, and manufacture goods in the United States.  In addition, they are imperative for protecting our U.S.
businesses in the face of our foreign competitors.  As such, strong patent protection policy must be a crucial
part of our economic recovery, and we look forward to working with you to
ensure that it is.