Posts in Capitol Hill

On October 12, 2010, I had the honor of interviewing retired United States Senator Birch Bayh, who was the primary architect of the landmark Bayh-Dole Act. In this second and final installment of my interview with Senator Bayh we will discuss the aforementioned loft praise for Bayh-Dole, which came from The Economist. We will also discuss statements of Vice President Biden (when he was a United States Senator) regarding the tremendous success of Bayh-Dole, how the United States can stay on the cutting edge of technology, and how to successfully lobby for changes in the patent system.

At IPWatchdog.com we will spend the next month celebrating Bayh-Dole. We kick off our month long celebration of Bayh-Dole with an exclusive interview with the chief architect of the legislation — The Honorable Birch Bayh, a former three-term United States Senator from the State of Indiana. Senator Bayh is now with Venable LLP, which is located in Washington, DC, and where I conducted my interview with him on October 13, 2010.

During this first installment of my two-part interview with Senator Bayh we discuss some of the accomplishments of Bayh-Dole and Senator Bayh tells the story of how Bayh-Dole came to be. I suspect many, if not most, will be amazed to learn just how close we came to not have this monumentally successful legislation. But for another Senator lifting a hold with an hour left in the 1980 lame duck session there would never have been a Bayh-Dole Act.

Director Kappos was also asked whether there were any plans to allow the community to access the patent search platform that is available to patent examiners. Kappos explained that it was simply not possible for the Patent Office to provide access to its systems to a greater extent than already allowed because the IT systems are “too fragile.” In fact, the state of disrepair that the computer systems at the USPTO are in is almost unfathomable. Particularly when the USPTO is collecting $1 million every day that it is unable to use. So they get the work, but not the fees. A recipe for the backlog and pendency going in the wrong direction.

In the election yesterday the Republicans scored an enormous victory in the United States House of Representatives, gains of a still unknown number in the United States Senate, and gains in Governors’ races as well as State House and State Senate chambers across the country.  Earlier this afternoon, at 1:00 pm Eastern Time, President Barack Obama held a press conference…

As the evening moves forward it is increasingly apparent that the Republicans are having an excellent night, and exactly what the vast majority of pundits have predicted seems to be coming true. Not withstanding the potentially historic nature of this election, there will be plenty of time to consider what the election results mean in general, for business and for a variety of issues important to families; the so-called kitchen-table issues. But for tonight I will reserve my commentary to what the election results mean for patent reform. Those following my recent articles might find themselves surprised. In order to discuss the impact of patent reform we first need to define what is meant by “patent reform.” I am going to divide patent reform into two categories: (1) pending patent reform that might get consideration in the lame duck session; and (2) patent reform that we desperately need the next Congress to take up.

Saying that Congress controls the Patent Office is something of a misstatement really. It would be far more accurate to say that Congress starves the Patent Office and is constantly demanding more and more with less and less. At a time when $1 trillion is spent like Monopoly money to put Trump like towers on Boardwalk and Park Place it is not only irresponsible, but down right embarrassing that our political leaders in Washington are starving our innovation agency while they hit the campaign trail with all the required high-tech, innovation and job growth platitudes that the evening news demands in 15 second intervals. There is plenty of blame to go around with respect to how we got into this state, but does anyone think we can realistically get out of this mess without thoughtful Congressional assistance? Then the real nightmare question becomes: Does anyone really think we will ever get thoughtful Congressional assistance?

This idea of revenue in exceeding revenue out is really not one that is in and of itself patentable though. Families and small businesses live with that reality every day of every week of every month of every year. So there will likely need to be some kind of a hook in whatever claims we write to make sure that we distinguish over the common sense prior art established by hard-working individuals who are the backbone of this Nation and who know that you simply cannot continue to spend more than you bring in. As our President is fond of saying — when you are in a hole you need to put down the shovel. That is common sense for individuals, families and small businesses, but seemingly incomprehensible when it comes to government — and that will be the patentability hook no doubt.

A bipartisan group of 25 Senators Wednesday sent a letter to Senate Majority Leader Harry Reid (D-Nev.) urging him to schedule a vote on the bipartisan Patent Reform Act. The legislation will make the first reforms to the nation’s patent laws in more than 55 years, and will update the patent system to improve patent quality and increase certainty among parties in litigation.

On Tuesday, August 10, President Barack Obama signed into law P.L. 111-224 that gives the United States Patent and Trademark Office (USPTO) the authority to spend an additional $129 million of the fees the agency will collect in Fiscal Year (FY) 2010. Due to an improving economy and increased patent examination productivity, the agency projects it will collect nearly $200 million more than its FY 2010 appropriation of $1.887 billion.

Straight from the “it’s about time” department comes breaking word that the so-called popular press are finally identifying the most under reported news story of this recession. The United States Patent and Trademark Office of foundering and it needs more money in order to do its job. Despite their lip service to innovation and job creation, politicians seem to year after year leave the Patent Office under funded and incapable of satisfying its purpose. But thankfully CBS did a 2 minute and 36 second segment on the crisis this past weekend!

In this third installment things get interesting, perhaps even a bit explosive. The former Chief of the Federal Circuit pulls no punches and talks openly and honestly about Congress, laying the blame for the decline of the Patent Office squarely on the feet of Congress who has since 1992 siphoned off at least $750 million thanks to fee diversion. This has left the Patent Office short on resources to do what needs to be done. The Judge also makes the case for regional Patent Offices and getting involved in the patent reform debate so that a handful of companies can’t dominate the discussions to their sole benefit. He talks about perhaps setting up a think tank to promote a pro-patent and innovation agenda, and how it is a “travesty” that patent rights cannot be enforced in a relevant time frame through litigation because of backlogs in the federal court system. I think it is fair to say that Congress was in the cross-hairs during this segment of our interview and some of what Chief Judge Michel tells me was surprisingly forceful, direct and extremely critical. Having said that, I think practically everyone in the industry will agree with him. I know I sure do!

Truth be told, it would be enough for Congress to just (1) stop siphoning off money from the USPTO through fee diversion; (2) grant the USPTO fee setting authority; and (3) stand out of the way. So my message to Congress would be this: put the pocketbook down, slowly step back and raise your hands over your head so we can see them!

If we can spend trillions in a failed effort couldn’t we spend a billion or two in an effort that is virtually guaranteed to succeed? I say for every $1 trillion wasted we should spend at least $1 billion on things that will work. By my estimates that means $4 billion more for the Patent Office. Not being a greedy guy I am happy to take that in four equal installments of $1 billion over a 4 year period. For those who are math adverse, that would mean the USPTO budget for FY 2011, 2012, 2013 and 2014 would be whatever they collect plus $1 billion, which for FY 2011 would likely be in the neighborhood of about $3.2 billion.

On Wednesday, May 5, 2010, David Kappos testified in front of the United States House of Representatives Committee on the Judiciary. See Hearing Page and Kappos Prepared Remarks. Many issues were covered during the hearing, but there were a couple matters that jump out as quite important. Most significantly, it seems that once again the Senate patent reform bill may be running into some difficulty in the House of Representatives. Some in the House of Representatives seem interested in slowing down regarding the substantive changes embodied in the Senate bill, but seem willing to consider legislation less grandiose and focused solely on giving the Patent Office fee setting authority and perhaps the ability to retain its fees. This, however, lead to a heated exchange that has been misreported in some outlets, so lets set the record straight.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) recently came to agreement with Committee Ranking Republican Jeff Sessions (R-AL) on changes to the Patent Reform Act of 2009 (S. 515), winning Senator Sessions’ support for passage and making it extremely likely that patent reform will happen this year, and likely very soon. An individual involved in the ongoing patent reform debate…