The Latest Attempt at Patent Reform – by “Avi S”

The need for patent reform has been repeatedly addressed over the past few years in Congress. The latest bill updating the Patent Reform Act of 2009 is the fourth consecutive attempt to restructure the patent law since 1952. Over the past fifty years, technology has dramatically transformed the market and has highlighted the dire need for patent reform.

Proponents of reform describe how the current system offers low-quality patents with broad claims, thus providing high earnings to manufacturers. With inconsistent court rulings, and common overcompensating damages, patents have in a sense strayed from the innovative purpose they were intended to promote. More recently, the Supreme Court has started to work towards improving patent quality and remedies.

The US Senate lead by Vermont Senator Patrick Leahy, Utah Senator Orrin Hatch and NY Senator Chuck Schumer have announced a bipartisan agreement to more directly address these problems. “The Patent Reform Act” aims to improve “patent quality” and to create an efficient system to enable a more strict granting of patents. Moreover, this Act serves to restrict damages calculations in many cases. With this system, broad claims will not succeed in deriving patents and will be prevented from hindering innovation in the marketplace.

Among the various reforms, this Act creates a “first-window post-grant process” which is meant to provides a method to challenge patents that should not have been created in the first place. Additionally, the Act changes the law to give a patent to the first inventor that files for one and gives permission for other parties to challenge any of the pending applications. Furthermore, this Act will change the troubling and ineffective administrative review of patents; an adversarial inter-parties review led by a group of patent judges serves as a potential alternative to litigation. This Act hopes to restore the value of patents to serve their purpose. By reducing costs and creating a more productive process, the bill plans to create more jobs, and more freely allow for innovation.

Among the congressmen supporting the Act, various high-tech, pharmaceutical, and manufacturing companies as well as universities support this reform. According to Senator Leahy, the Act “is fair, reasonable and necessary for our continued economic development.”

Critics of the bill maintain that these revisions will work in favor of patent violators instead of inventors, and thus impede future innovation in America as it limits the patent owner from enforcing certain rights. Some argue that this reform should remain the task of the courts and not the congress. Others argue that the bill does not go far enough and lacks the proper reforms necessary to affect change.

If this bill passes, time will reveal as to how well these reforms advance the goals of promoting innovation and will demonstrate what reforms are still necessary. But until then, the debate will likely go on for some time.