Lawmakers gear up for patent system overhaul

Key House panel is all for introducing a patent reform bill, but agreeing on details could prove a daunting task.
Written by Anne Broache, Contributor
WASHINGTON--After years of failed attempts at revamping what the high-tech industry decries as a broken U.S. patent system, a key House of Representatives panel is gearing up for yet another try.

At an afternoon hearing here, Rep. Howard Berman (D-Calif.), the new chairman of a House Judiciary subcommittee that writes intellectual property laws, did not attempt to mask his intentions. Not only did the panel title the event "American Innovation at Risk: The Case for Patent Reform," but its lineup of four outside speakers consisted exclusively of attorneys and academics who have publicly recommended various fundamental changes to the way patents are granted and contested.

"This is not intended as a hearing to get all the different interested parties (to speak)," Berman said in his opening remarks. Rather, he said he was more inclined to bring in people who, in his view, could make the case "to make patent reform a high priority on my agenda."

It's neither a new nor a partisan objective. Rep. Lamar Smith (R-Texas), who previously headed the intellectual property panel, also proposed sweeping changes. Speaking at Thursday's hearing, Smith even referred to the intellectual-property panel an "oasis" in which politicians have more policy goals in common than usual.

But efforts at making changes to patent law have faltered in part because of disagreements among a number of high-powered industries about the route Congress should take.

One dispute, for example, lies in how damages would be awarded to patent holders who win infringement suits. Silicon Valley companies would like that calculation to be based not on the value of the entire product, but on the value of the patented element, because their products often include thousands of different patented elements. But the pharmaceutical industry, whose products may involve only one patent, argues that approach fails to reward inventors appropriately.

Berman said Thursday that he and a number of his colleagues plan to introduce a patent bill soon. In the past five years, he and Rep. Rick Boucher (D-Va.) have introduced two different bills aimed at boosting the quality of patents that are awarded, but those efforts were never approved.

It's not entirely clear what will be included in their next measure, expected to be proposed within the next month and debated soon after. Berman did say Thursday that any recipe for patent system overhaul should ensure that the patent office has enough funding to hire an ample number of examiners and staff. He also emphasized the need for "meaningful, low-cost alternatives to litigation." Both ideas are common themes from previous patent bills in Congress.

In a speech late last month, Boucher went into more detail about what may lie ahead in the joint effort. One idea he outlined was requiring pending patent applications to be made public a certain number of months after being filed so that the public would have a chance to submit prior art--that is, evidence that a given invention may be predated by earlier products or ideas. Some argue that an excessive number of questionable patents have been issued because examiners do not always have the time or ability to find such information on their own.

Boucher said Thursday that he also remains concerned about business method patents, a controversial class that grants protection to processes. (Amazon.com's one-click checkout system generated one of the more infamous disputes surrounding such a patent.) But he suggested he is leaning against directly restricting or outlawing that type of patent in any new legislation.

Adam Jaffe, a Brandeis University economics professor who co-authored a book decrying the state of the U.S. patent system, cautioned against trying to create special standards for different kinds of patents. The underlying problem that needs a legislative fix, he said, is reworking the system to allow patent examiners "to get more appropriate information from people who really know what is novel and what is obvious."

Daniel Ravicher, executive director of the advocacy group Public Patent Foundation, whose board members include computer industry and free software representatives, disagreed. "Software should not be patentable, and neither should business methods," he said.

Although many politicians speaking at Thursday's hearing indicated they were eager to enact new legislation, some suggested hasty action could do more harm than good.

"No situation is so bad that Congress can't make it worse," said Rep. Tom Feeney (R-Fla.). "We have to be careful."

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