Q. Now that 2010 has come and almost gone, what is the status of patent reform?
Bob Stoll, Commissioner for Patents
A. As the curtain closes on the 111th Congress, there is still a glimmer of hope for final action on patent reform legislation.
In a recent letter to Senate Majority Leader Harry Reid, 25 Senators urged that patent reform legislation move forward this Congress. We join those Senators, from both sides of the aisle, and a wide range of stakeholder interests in urging the Senate leadership to schedule debate on the Manager’s Amendment to S. 515, the Patent Reform Act of 2010.
A lame duck session after the November elections might offer that opportunity, but if not the legislation will have to be reintroduced in the 112th Congress next year.
The Obama Administration supports the Senate legislation and we continue to believe that comprehensive patent reform will enhance the capacity of the U.S. Patent and Trademark Office to support an improving economy and allow U.S. companies to create jobs and attract investment without adding to the deficit.
We know that members of the House of Representatives also care strongly about these issues and have also supported their efforts to reconcile any differences with the Senate bill.
Innovation will play an even more critical role in the future of the American economy in the years ahead. To ensure that this happens, we need a more modern patent system.
The Senate Manager’s Amendment would provide the USPTO with the tools it needs to effectively serve all America’s innovators. We believe that the Manager’s Amendment incorporates critical elements of patent reform and effectively improves the bill reported by the Senate Judiciary Committee in April 2009.
Fee setting authority, proposed in the Manager’s Amendment, provides necessary authority for the USPTO to adjust patent and trademark fees as needed to fairly and accurately recover the costs of providing services to innovators and to create incentives that spur innovation. The Amendment includes substantial opportunity for input and oversight of the fee-setting process by stakeholders.
The Amendment’s improvements in terms of post-grant review will also benefit the innovator community by providing a fair, timely and cost-effective alternative to costly and often protracted litigation.
Language in the Amendment is carefully crafted to help eliminate serial challenges or harassment of patent owners. The bar will be set high so that patentees are not required to defend frivolous challenges, and so that USPTO resources are used only where serious patentability issues are presented. And, if the threshold is met, the review will be completed within one year. The shorter post-grant review process created by this Amendment will ultimately save inventors time and money by making a court challenge far less likely.
Included in the Manager’s Amendment are several other important changes to streamline and strengthen the patent process including changes to promote international harmonization of patent laws and enable greater work-sharing efforts internationally, via a transition to a first-inventor-to-file system, and to codify a carefully negotiated compromise on the determination of reasonable royalty damages for patent infringement.
These provisions are designed to fairly balance the interests of innovation and competition across all industries and technologies without favoring one industry or technology area.
Enactment of the Manager’s Amendment to S. 515 will be a positive step toward a stronger USPTO and a stronger patent system for all innovators. Again, we urge the Senate to act on this important legislation this year.
Editor’s note: This article appears in the December 2010 print edition.
Not a subscriber!? Click here now!
