By
Donald Zuhn —

Secretary
of Commerce Writes in Support of S. 515

On
April 20, Secretary of Commerce Gary Locke (at right) wrote to Senate Judiciary Committee
Chairman Patrick Leahy (D-VT) and Ranking Member Sen. Jeff Sessions (R-AL), indicating
that the Obama Administration strongly supported their efforts to reform U.S. patent
law and was "committed to working with members of both houses of Congress
to bring these efforts to fruition as you seek to bring a bill to the Senate
floor."  The
Secretary's letter
states that:

We believe the agreement reflected in the draft Manager's Amendment to S. 515,
the "Patent Reform Act of 2010," improves the reported bill and
incorporates critical elements of patent reform.  In particular, we are pleased that the Manager's Amendment
provides necessary authority for the USPTO to adjust patent and trademark fees
as needed to reflect the costs of providing services to patent applicants.  It also establishes post-grant review
procedures for reviewing questions of patent validity that will serve as a
faster, lower-cost alternative to litigation.

In addition to these proposals to
streamline and strengthen the patent process, the Manager's Amendment contains
provisions to promote international harmonization of patent laws and limit
opportunities for abuse in patent litigation.  Among other important changes, these provisions maintain the
compromise on the determination of reasonable royalty damages for patent
infringement, and they transition our patent law to a first-inventor-to-file
system.  In general, these
provisions fairly balance the interests of innovation and competition across
all industries and technologies without favoring one industry or any particular
area of technology over another.

The
Secretary noted that the Administration was "eager" to see patent
reform legislation enacted in the current Congressional session.

ABA
IP Section Sends Letter of Support for S. 515 to Senate Leadership

In
late March, the Section of Intellectual Property Law of the American Bar
Association (ABA) also sent a letter to Chairman Leahy and Sen. Sessions, expressing "support for Senate consideration and approval of the
bipartisan Amendment in the Nature of a Substitute for S. 515, which you and
other senators announced on March 4, 2010" (see "Senate Leadership Unveils Details of Patent Reform
Agreement").  The IP Section noted that it had expressed support in April 2009 for the Senate
bill then reported out of Committee, and was now "reaffirm[ing] that
support for S. 515 as embodied in the Amendment in the Nature of a Substitute."  Among the "numerous improvements in U.S. patent laws" contained in
the Senate bill, the IP Section lists "enhanced patent quality through
procedures for third-party pre-issuance submission of prior art, improved
efficiencies by utilizing an ABA-supported first-inventor-to-file system,
improved patent quality by providing a fair and cost-effective post-grant
review procedure, and clarification of the gate-keeping responsibilities of
district courts in determining damages."  The letter states that the
legislation no doubt contains provisions that members of the Committee "would
prefer to have been addressed in a different manner."  However, in
supporting enactment of the bill, the IP Section argues that "the perfect
should not be the enemy of the good, and this is a good bill, perhaps the best
possible."

New
Coalition Opposes Patent Reform Act

Last
month, the Nevadans for Fair Patent Reform
kicked off a campaign in opposition to the Patent Reform Act.  According
to the group's website, the legislation will "so negatively impact
innovation and entrepreneurial activity in Nevada."  Noting that "[f]or
more than 100 years, the federal law in the United States has protected the
small inventor," including "[t]he great men and women who worked in
their garages, kitchens and workshops to develop the next 'big idea,'" the
new coalition argues that "Senate Bill 515 and House Resolution 1260 would
erode more than a century of law and traditions protecting the rights of
inventors."  Representatives from a number of Nevada-based companies, the
Reno law firm of Holland & Hart, and a student at the University of Nevada
(there are currently thirteen signatories)
bemoans the "elimination of the one-year grace period . . . under the
supposed 'Reform' even if you are the first inventor and even if you file
within the traditional one-year grace period as the law currently stands and
has stood for long over 100 years in the U.S."  Contending that the
proposed patent reform legislation will adversely impact job growth in Nevada,
the group's website states that:

The huge companies pushing Patent Reform claim they will devote savings earned
from their version of patent reform to creating more jobs.  Their so-called
savings will be gained at the expense of the small businesses and early stage
innovation inventors and start up firms who oppose this reform.  Nevada's early
recovery must be based in substantial part on such firms.  Those firms will need
capital to grow.  Patent Reform as now proposed will deter such investment and
resulting innovation, entrepreneurship, and competition with those pushing for
this "Reform."

The
coalition urges Nevadans to write Sen. Harry Reid (D-NV) and Sen. John Ensign (R-NV)
to oppose the Patent Reform Act of 2009.

Innovation
Alliance Believes House Patent Reform Bill Would Negatively Impact U.S. Economy

Last
week, the Innovation Alliance, a coalition of small and medium-sized technology
companies, issued a press release
stating that "the pending House patent reform legislation, H.R. 1260,
would negatively impact the U.S. economy, U.S. innovation, and U.S. job growth,
particularly with respect to its provisions on damages and post-grant review."  The coalition's press release came in
response to the oversight hearing on the U.S. Patent and Trademark Office that
the House Judiciary Committee held last Wednesday.  The group is concerned primarily with the post-grant review
provisions in H.R. 1260 that it contends "would be detrimental to job
growth and innovation in America."  In addition, the coalition asserts that "[t]he current version of
the bill would devalue the contribution of inventors by devaluing valid
patents, make the patent process subject to greater abuse, and make it more
expensive, slower, and less predictable, especially for innovative smaller
companies and universities." 
The group concludes that in view of the slow economic recovery and
financial pressures on the USPTO, "this is exactly the wrong time to add a
major new post-grant review component to the USPTO's mandate."

Two
Representatives Oppose House Patent Reform Bill

Last
Wednesday, on the same day that the House Judiciary Committee was scheduled to hold
an oversight hearing on the U.S. Patent and Trademark Office, Rep. Don Manzullo
(R-IL) and Rep. Mike Michaud (D-ME) released a joint statement
expressing "significant concerns" with the House patent reform bill (H.R.
1260).  In particular, the two
members of the House expressed concern that the oversight hearing would "fail
to address the fact that the current House version of the Patent Reform Act of
2009 (H.R. 1260) hinders American innovation and undermines U.S. job creation
by increasing patent lag times, decreasing patent quality, and making patents
more difficult and expensive to obtain."  The pair encouraged the Committee "to promptly schedule
hearings to address the valid concerns expressed by stakeholders in various
sectors — including universities, manufacturing, labor, small inventors,
information technology, biotechnology, nanotechnology, and agriculture — with
the current version of H.R. 1260."