Senate Republicans discuss patent reform in private briefing with infringer lobby

Senator Orrin Hatch (R-UT)

Senator Orrin Hatch (R-UT)

Yesterday, Senator Orrin Hatch (R-UT) wrote an op-ed in the Medium, which explained that he would convene a meeting of the Senate Republican High-Tech Task Force in order to hear from patent experts on the impact of the U.S. Supreme Court’s ruling in TC Heartland, and to discuss what Congress can do in terms of additional patent reform in order to improve the U.S. patent system.

Senator Hatch also explained in his op-ed that this meeting would also the inter partes review (IPR) process, which he said “is an issue that warrants Congress’ attention.” Finally, Senator Hatch said that his meeting of Republican on the High-Tech Task Force would discuss patent eligibility issues, seemingly voicing concern over the consequences for drug companies and software patents. “If treatments derived from natural processes cannot be patented, life science companies may find their intellectual property rights sharply curtailed,” Hatch wrote. “And if software patents for business methods like third-part escrow are wholesale invalid, business software developers may turn their attention to other products.”

Hatch ended by saying: “We must do all we can to ensure our patent system functions smoothly, effectively, and efficiently.”

The Hatch op-ed would seem to be music to the ears of beleaguered patent owners in the life science and computer implemented innovation areas. The problem, however, is with those the Senate Republican High-Tech Task Force heard from during this private meeting.

According to POLITICO, the meeting of the Senate Republican High-Tech Task Force featured a briefing from panelists “including Intel associate general counsel Tina Chappell, Google senior patent counsel Suzanne Michel, Adobe vice president of intellectual property and litigation Dana Rao, Oracle vice president and associate general counsel Matthew Sarboraria and Salesforce senior vice president of intellectual property David Simon.” POLITICO reported that Victoria Espinel, current president and CEO of BSA The Software Alliance and a former IP Czar under President Obama would moderate the discussion.

All of those identified by POLITICO are closely tied to the so-called patent infringer lobby. This list of individuals is anything but fair and balanced. To call it one-sided in their views on the patent system would be putting it mildly.

While there is absolutely nothing wrong with interested individuals and companies lobbying Congress on issues of importance, there is something fundamentally wrong when Congress continues to hear only from one side — those that prefer weaker patents, easier invalidity challenges, and less to be patent eligible.

Hopefully Senator Hatch, who has historically be a defender of the patent system and a friend to innovators, will reach out to the other side in order to offer a balanced perspective to the Senate Republican High-Tech Task Force. Such a briefing should include highly successful independent inventors who can authoritatively explain the need for strong patent protections (i.e., Dr. Gary Michelson, Jay Walker, Dean Kamen), technology transfer officials from major universities with an established track record on innovating (i.e., Wisconsin Alumni Research Foundation), major corporations that believe in a strong patent system (i.e., IBM, Qualcomm), and thought leaders who are critical of recent legislative changes and Supreme Court decisions (Chief Judge Paul Michel (ret.), David Kappos, Adam Mossoff). There are obviously others who qualify to provide their viewpoint to Congress, but in each instance those identified are well know on Capitol Hill, well-versed and respected.

Only through a balanced presentation of what has become a truly devastating reality for innovators will Congress get any true sense for what really needs to be done to achieve a fair and functional patent system that operates smoothly, effectively, and efficiently.


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Join the Discussion

8 comments so far.

  • [Avatar for Night Writer]
    Night Writer
    October 6, 2017 08:40 am

    @7> I think the snake is hissing.

    I agree. Plus, Alice enables any judge to invalidate any claim on SJ. Anyone that knows anything about patents knew the PTAB would burn the patent system down. We all knew that before the AIA passed.

  • [Avatar for Paul Morinville]
    Paul Morinville
    October 5, 2017 03:46 pm

    I think what Hatch is saying is that he wants to preserve the PTAB, of which he is an author, but he would like to rein Alice in. But he has proven that he is not on the side of inventors or startups by authoring the AIA and in preserving it, he doubles down.

    Alice is a fatal issue for small entities that needs to be fixed. It is also a moderate concern for large multinational technology companies like IBM and others who invent real technology. But Alice benefits the primary players of the anti-inventor lobby (consumer internet multinationals like Google, Facebook, Amazon, etc, or technology assemblers like Dell and Cisco), by enabling rampant invalidation of infringed patents at rates of 64% or greater.

    Hatch also supports the PTAB. The PTAB is absolutely devastating to small entities. But it is only slightly damaging to large multinationals. Most large companies enjoy the benefits of effectively killing infringement suits by engaging the death squad of the PTAB more than they dislike the possibility of a few of their own patents becoming invalidated in the PTAB. After all, when you have thousands of patents, losing a few is not a material to your business, but killing an infringement suit just might be.

    While it seems all multinationals would like to keep the PTAB, there is a rift in who wants to keep Alice. The anti-inventor lobby would like to preserve it, most other large multinationals want is reined in. Hatch is now dealing in a new political reality in Washington. Inventors have busted through the political winds and that wind has shifted in the direction of preserving the American Dream and our job creation engine. So Hatch is trying to straddle the fence while still doing the bidding of large multinationals. I think he is throwing his position out to see who bites in an effort to preserve the PTAB in a way that sounds like he is really after fixing the overall system.

    I think the snake is hissing.

  • [Avatar for Eric Berend]
    Eric Berend
    October 5, 2017 09:18 am

    Ten years and no inventor’s testimony or opinion on the record. This meeting merely continues more of the same captive interest nonsense. Fiddles sing, while the economic bones of the Republic burn.

  • [Avatar for Night Writer]
    Night Writer
    October 4, 2017 09:49 am

    Chen was the solicitor not the director.

    Actually, the funny thing is that Google has stacked the CAFC with goons (Taranto, etc.), and thought that Chen was going to be a goon given his past. But, Chen flipped and turned out to have more respect for the law than Google.

  • [Avatar for Tim]
    October 4, 2017 07:39 am

    Meanwhile, shareholders of Vringo, now File Holdings, symb: FH, have lost life savings, from 2 unqualified Appeal’s Court judges, “Mayer & Wallach” that tossed a 12-man jury’s 14-0 findings against Google, AOL,Gannett & Target, and the only qualified Judge Chen, with computer engineering degree that “highly dissented”. Chen was former head of US PTO and wad replaced by Google’s Michelle Lee. Infringement case was “Vringo VS IP Internet”. US Supreme Ct for “obvious” reason, wouldn’t see the case?? Tipped scales of justice, with Google stock doubling to $990.00+. While FH now around $1.30, after a 10-1 reverse split.

  • [Avatar for The Time Is Now To Act]
    The Time Is Now To Act
    October 3, 2017 06:37 pm

    Ah, yes. What a 5 bagger of sources of testimony Senator Hatch is front of him.

    Based on his writings in Wired magazine re TC Heartland and this soiree with the usual suspects, it is pretty clear Senator Hatch has merely invited his donor friends to break bread with him.

    Oh, also on the agenda is to further discuss the next round of attempts to ensure of the U.S. patent system is only usable by the same visitors providing ‘testimony’.

  • [Avatar for Ternary]
    October 3, 2017 02:11 pm

    Excellent suggestions Gene. This is a true litmus test on how Congress views and will act on innovation and the role of independent inventors. Like in so many cases, our politicians profess to support one thing but then act on it in the interest of large donors. Senator Hatch seems to hit at least some right notes. Please continue to report on this influential group. As an independent inventor I vote for you being included in the next Senate Republican High-Tech Task Force discussion to advocate for independent inventors.

  • [Avatar for David]
    October 3, 2017 01:45 pm

    There is no way in h/e/l/l Congress will voluntarily relinquish the power the Federal Circuit gave it in Patlex.

    There is only one institution that can remedy this mess, and that is SCOTUS.