April 15, 2004
The PTO: "Good Quality for the Dollar" -- But Please, Let's Reform

Today, Berkeley buzzed with even more geeks than usual as proceedings began on a symposium optimistically titled Ideas Into Action: Implementing Reform of the Patent System. Though termed a "pretend" conference by the April 1 edition of PATNEWS, the event's opening press conference and tutorial boasted real people equipped with legal pads and pens ready to dissect the latest bombshells on the patent reform frontier: new reports from the Federal Trade Commission and the National Academy of Sciences on what's wrong with the patent system and how it might be fixed.

One of the bombshells turned out to be a dud. In the way of high-minded projects, the NAS report ran a bit behind schedule and is embargoed until Monday, causing NAS guy Mark Myers to explain as much and then mostly sit with zipped lips -- not hot press conference stuff. This left the floor to the FTC (commissioner Mozelle Thompson and senior policy analyst Susan DeSanti) and Boalt Hall profs (Peter Menell and Robert Merges) endeavoring to explain how patents, innovation, and competition can all get along.

The FTC report (if you're not up to the full 315 pages, Susan recommends you try the 18-page executive summary) divvied its reform proposals into three categories, each briefed by PowerPoint slides and professorial remarks: beefing up the non-obvious requirement for the initial patent grant, expanding opportunities for opposition and post-grant review, and lowering the burden of proof for challenging patent validity in court. As Merges characterized the current state of the system, the PTO process is "democratic" -- i.e. underpaid, yielding "good quality for the dollar" -- while patent litigation is "gold-plated," boosting patent quality at the cost of millions per case to those who can afford to pay. With polite praise for the poor examiners and silence on the subject of rich litigators, the reformers proposed that the solution lies somewhere in between. What else could you conclude from more than 5,000 pages of transcripts?

Indeed, a lot of hearings went into the FTC report, with the DOJ riding shotgun on the competition piece. (Fans of numerology will want to explore the "Nine No-Nos" of patent licensing DOJ issued in the 1970s.) Today's speakers were optimistic that Congress may actually be listening in; no less than Representative Howard Berman (D-Calif.) called Mr. Thompson on his cell phone on his way across the bay this morning. The Commissioner himself concedes that intellectual property "is not very sexy" -- so if Congress is listening, what do we want them to hear?

Tomorrow: What happens when you put CISCO, Microsoft, Genentech, eBay, Google, Symantec, Intel, and patent talk together during the deepest doldrums of afternoon slump?

Posted by Elizabeth Miles at April 15, 2004 06:58 PM | TrackBack

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