June/July 2010 / Features
Patent Reform Might Quench the Spark of Genius
The author references a widespread perception that the U.S. Patent and Trademark Office grants too many “bad” patents, and takes too long doing it. The solution on the table is Congressional overhaul of the patent system, but the author doubts the necessity of the kind of sweeping proposals that are being considered. These include change to a first-inventor-to-file priority system; creation of a post-grant patent cancellation proceeding; guidelines for courts in making patent infringement damages determinations; and transformation of inter partes (contested) reexamination proceedings from a model based on traditional patent examination to one based on a contested administrative proceeding before the administrative patent judges of the Board of Patent Appeals and Interferences. Critics characterize the bills that propose these changes as a crazy quilt of provisions championed by various industries. Some are concerned that the proposed changes could actually discourage innovation. Others feel that the courts are a better forum for change than Congress.
According to the author, legislation may be unnecessary because several important issues have been resolved by the courts. Examples include the calculation of damages, the formulation of patentability standards, and the proper standards for granting injunctions. He quotes Abraham Lincoln, who said: “The patent system adds the fuel of interest to the spark of genius.”