Politicos ponder patent system changes

Congress talks about fixing patent system, but with conflicting interests, path to new legislation could be slow going.

Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
Anne Broache
3 min read
WASHINGTON--In the wake of high-profile lawsuits involving BlackBerry and eBay, Congress is once again talking about fixing what the technology industry says is a thoroughly broken patent system.

While much of the U.S. Senate was occupied by floor debate on an immigration bill on Tuesday afternoon, the leaders of an intellectual property panel within the Judiciary Committee convened a hearing to discuss the prospects for new patent legislation. The packed hearing room indicated they're not the only ones with a stake in the issue.

Panelists representing a major tech company, a major pharmaceutical and biotech manufacturer, independent inventors, academia and the finance sector offered their own--and often competing--suggestions for action. Sen. Orrin Hatch, the Utah Republican who chairs that panel, and Sen. Patrick Leahy, the Vermont Democratic co-chairman, admitted they had a daunting task ahead.

"What we're going to do is sift through this and see what we can do to try and be fair and yet honest and decent and hopefully come up with something that will be suitable for most people," Hatch said. The senator has been working since at least last summer on a bill but does not have a timeline for when it will be introduced, spokesman Peter Carr told CNET News.com.

Tuesday's hearing focused on patent litigation reform--more specifically, the idea of creating a new system in which the public could challenge the validity of patents just after they are granted in a venue outside of court.

But opinions on the best way to set up that procedure, sometimes called "post-grant opposition," have fractured largely along industry lines, with the technology and financial services sectors facing off against the biotechnology and pharmaceutical industries, and independent inventors falling somewhere outside any of those realms.

With the exception of the independent inventors' community, everyone seemed to agree on the need for a new system, overseen by an administrative body within the U.S. Patent and Trademark Office, through which the public would have a set period of time--some have suggested nine months or a year--to dispute the issuance of patents for various reasons.

Serving as "an immediate quality control check on newly issued patents," such a system could help stave off expensive litigation in the first place by invalidating patents early on, said Philip Johnson, chief patent counsel for Johnson & Johnson.

Technology and financial services companies argue that there also needs to be a second such "window" to file an opposition request that would start as soon as a patent infringement suit is filed against a company. The first window simply wouldn't provide enough time for companies like theirs to pore over the thousands of patent applications that could apply to their products and file pre-emptive challenges, representatives told the politicians.

"In the case of our products, there are potentially tens of thousands of patents which someone could try to say somehow applies," said Mark Chandler, general counsel for Cisco Systems. "There are numerous pieces of litigation where there's no way, if you look at the patent, (you could predict that) someone would try to apply it to the product we have."

Nathan Myrhvold, an independent inventor and former Microsoft executive, charged that there would be no need for that additional window if technology companies encouraged their employees to read patents regularly, as their counterparts in other industries claim to do. "They figure it'll slow things down, that it's better to get out into market," he said. "There's never been a tradition of doing that."

The focus on changes to the patent litigation system has picked up in recent weeks, with some groups calling on Congress to address unresolved concerns left by the Supreme Court's concise opinion in the eBay case. A new coalition that includes Intel, Cisco and Hewlett-Packard formed earlier this month, pledging to target perceived problems with the patent litigation system and lobby for change.

On the U.S. House of Representatives side, Texas Republican Lamar Smith has held the first of a new round of hearings on the topic. Smith introduced a wide-ranging patent reform bill last year that has stalled since garnering a lukewarm reception from the industries represented at Tuesday's Senate hearing.

Late last week, two other House members introduced a bill designed to increase the number of federal judges equipped with the knowledge to try complex patent cases.

The Patent Office also has pitched its own ideas recently, including a pilot project in which the public would be allowed to assist overworked patent examiners in vetting applications.