The Time for Talk has Passed, So Lets Get Started

About 18 months ago while I was at PLI headquarters in New York City teaching a Patent Bar Review Course, my friend Bob Spar suggested that my view of Patent Office rulemaking was not helpful and in fact was part of the problem and that patent attorneys are at least as responsible for the state of the patent system as the Patent Office. Bob pointed out that I was not taking the Patent Office view into consideration and that I was just ignoring the problems that need to be fixed. I thought I had been taking the Patent Office view into consideration, but frankly back then I and most other patent attorneys were livid because the Patent Office seemed hell-bent on making changes for change sake, and taking aim squarely on those inventions that are the most commercially relevant. I took Bob’s criticism to heart, and have tried to offer solutions whenever possible, but now it is time to take it to another level.  The U.S. patent system was and still is broken and desperately needs to be fixed. The problem up until the beginning of 2009 was that the Patent Office was not interested in doing anything that was actually calculated to solve the problems at hand and sought to completely absolve itself of any responsibility for the crisis. But it seems the winds have shifted, and maybe the time is now to once again offer to engage with the Patent Office to create solutions.

Certainly, there are some bad actors out there who abuse certain rules, but as is the case with most bad actors they are the minority. Yes, we all do things that the Patent Office would rather we not do, but most if not all of these widespread activities are in direct response to the mandates of either the Federal Circuit or the Supreme Court. In the past the Patent Office seemed to want to punish us all for the transgressions of a few, and for following the mandates of the courts. But sweeping all practitioners together, and petty bickering with the courts and using patent practitioners as pawns is not at all helpful. It has lead to a lot of distrust, resentment and anger between the Patent Office and the patent bar. Perhaps worse, at least some young examiners have come to age under a regime that blamed patent practitioners for everything. Eventually some of them will lead the Office, and if they feel that way when in positions of authority the entire system will meet head on with a brick wall. We need to build bridges, mend fences or perhaps just sit down and talk. Someone needs to step up to the plate and extend an olive branch, and now seems as good a time as any.

An open and frank discussion between representatives of the stakeholders and decision-makers would be a good first step forward. If representatives of the Federal Circuit, the Patent Office and the Patent Bar could get together and talk openly about the problems and daily frustrations faced by each, real progress could be made. At least everyone would understand what the problems are from each perspective, which could lead to meaningful discussion of potential solutions. If open minded stakeholders could also join in the conversation then maybe we might even be able to come up with some legislative solutions that could actually get enacted by Congress rather than bills that get bogged down in bickering between industries that all need and want different things. The only hope for legislative reform is to figure out what needs to be done to help the Patent Office first. Big tech companies, pharma, biotech, green companies, research and development start-ups and independent inventors all need a working Patent Office, so starting there is the right place to get at least some helpful reforms that are desperately needed.

With this in mind, I have started talking to some contacts in the industry to see if such a thing could be pulled off, and the consensus seems to be yes, it could. As some of you may know, October 10, 2009, will be the 10th Anniversary of IPWatchdog.com. With this in mind, and having made this call for discussions for some time, I am going to pursue this in conjunction with the 10th Anniversary of IPWatchdog.com. I don’t plan on just doing something on October 10, 2009, but rather celebrating the 10th Anniversary of IPWatchdog.com during the month of October 2009. What better way for me to contribute than to bring together thought leaders in the patent industry to discuss the reality of patent practice and the US patent system?  The fact that my 10th Anniversary online is approaching just gives me all the more incentive to celebrate this milestone in a way that will bring the industry together.

More details will be forthcoming shortly, but my plan is to hold one or more meetings by invitation so as to keep the size manageable and the discussion flowing. For a long time I have also thought that it would be great to get together a group of influential patent bloggers, and now that I have a list put together of the top patent blogs it seems about time for an online patent bloggers meeting/forum, and this could be the perfect reason to hold such a meeting, so I suspect some kind of patent blogger contribution will be a part of this plan as well. Perhaps a virtual online meeting can be incorporated, or held as a separate meeting so that those not in or near the Washington, DC area can participate as well.

The goal of these various meetings is to not only start a discussion, but to also create solutions as well. In order to really accomplish this goal, and to have it be a useful addition to the ongoing debate, the various discussion points will be explored by participants working in manageable groups over a period of about 6 months, with the goal of holding a conference where the considered solutions can be presented and further discussed.