There are many opposing viewpoints on the issue of patent reform, but at least one thing can be agreed upon: patent law is complicated.
Comprehensive patent reform will likely have to take a multifaceted approach, including reform of patent office procedures and the litigation process. A bill introduced this week, however, takes a focused approach to patent reform by aiming to make the subject less confusing for judges.
Rep. Adam Schiff (D-Calif.) and Rep. Darrell Issa (R-Calif.) reintroduced legislation this week that would start a 10-year pilot program to educate district judges on patent issues. Judges from courts that meet certain criteria would be able to opt into the program, which would provide funds for them to pursue educational opportunities such as patent seminars. The participating courts would also be assigned a clerk with expertise in patent law or the technical issues associated with patent cases. The bill authorizes $5 million a year to carry out the program.
At least six district courts, chosen from the 15 that saw the most patent and plant variety protection cases in the previous year, would have to join the pilot program. The courts chosen must house at least 10 judges, so that the courts are not perceived as specialized patent courts. Patent cases would still be randomly assigned to district courts, to avoid "court shopping," but the judges who receive a patent case would have the option of handing it over to a judge enrolled in the pilot program.
"I do think this bill is part and parcel of broader patent reform, which I do hope we're able to move this session," Schiff said. "Broad patent reform has a great number of challenges associated with it, since when you change the patent system in one way or another, you create advantages for some industries and concerns for others."
This bill, though "is an across-the-board winner," he said. "It doesn't affect different patent holders in different ways."
The legislation passed in the House of Representatives both in 2006 and 2007, but Schiff and Issa are more confident it will become law this year because Sen. Arlen Specter (R-Penn.) has introduced matching legislation in the Senate. Specter is the ranking Republican in the Senate Judiciary Committee, which has jurisdiction over patent issues. Committee Chair Patrick Leahy has yet to come out in support of the legislation, but he has said patent reform is afor him.
By cultivating more expertise on the bench, the congressmen are hoping to move cases along more quickly, thereby reducing the cost of litigation. The types of educational development the judges in the program could pursue would be left up to the judiciary, Schiff said.
"It's not something we want to micro-manage," he said.
The legislation could be particularly important for small companies that cannot afford lengthy trials.
"For small entities, it really is a situation that delayed justice is no justice," said Ron Riley, president of the Professional Inventors Alliance.
While Riley said educating judges would be a positive step for small businesses, he expressed concern over other potential patent reforms like limiting monetary damages awarded in infringement lawsuits.
"In order for a start-up to have a decent profit margin, they need intellectual property," he said, adding that bringing U.S. patent law in line with other countries' laws may not benefit U.S. companies.
Schiff said, however, he would like to see some patent reforms that harmonize U.S. laws with other systems around the world, such as granting patents to the applicant who first files for it, rather than the applicant who first invented the entity in question. He also said he'd like to see the patent review process become more efficient and would like to modify the inequitable defense doctrine, a controversial rule that allows federal judges to void a patent if the holder deceived the U.S. Patent and Trademark Office to receive it.