A Reason for Thanksgiving
By Kevin E. Noonan --
Patent law is no longer the backwater it resembled prior to the creation of the Federal Circuit, but it rarely receives the limelight of national attention. Until recently, that is, when it seems every editorial and pundit is weighing in on how "broken" the patent system is and how great is the need for patent "reform." Even Judge Cacheris' decision to stay implementation of the Patent and Trademark Office's ill-conceived "new rules" received scant attention from national media outlets.
So it comes as a pleasant surprise that a leading contender for President, Governor Mitt Romney of Massachusetts (at right), released today a fundraising letter focusing on the Judge's stay and the importance of patents to American innovation. Significant portions of the letter include:
As you know, I have continuously advocated a strong U.S. economy. I firmly believe that part of the underpinnings of our strong economy is the protection offered by a strong U.S. patent system.
In that regard, thank you for sending the legal briefs and the October 31, 2007 decision of James C. Cacheris, United States District Court Judge in the Eastern District of Virginia, in the case of SmithKline Beecham Corporation v. Jon W. Dudas. Through your discussion with my policy staff, I am aware that Judge Cacheris granted a preliminary injunction in the SmithKline decision against the United States Patent and Trademark Office (PTO), to stay the implementation of the highly controversial August 21, 2007 final rules until the resolution of the lawsuit. I understand that you and many others strongly oppose the final rules as weakening the patent system.
Numerous amicus briefs were filed in this lawsuit, all opposing the implementation of the new rules by the PTO.
With his preliminary injunction against the PTO, Judge Cacheris emphasized the importance of a dependable patent system to protect the significant investment capital of innovators. I applaud his decision. If I am privileged to serve as President of the United States, a tenet of my administration will be to strengthen the U.S. patent system and immunize it from the type of anti-innovation governmental meddling duly enjoined by Judge Cacheris.
Even more importantly, Governor Romney pledged actions long called-for by members of the patent community:
In particular, I have the following initial goals:
(1) Ensure that the Undersecretary of Commerce and Director of the PTO will be a distinguished U.S. patent lawyer with many years of experience.
(2) Propose to Congress and/or support only such patent reform legislation as will strengthen the U.S. patent system.
(3) Carefully consider appointing to the United States Court of Appeals for the Federal Circuit, as vacancies arise, excellent lawyers who have experience practicing U.S. patent law, particularly since all decisions in patent cases by the United States district courts are appealable to the Federal Circuit.
Governor Romney has clearly been speaking with someone who understands the issues facing patent applicants in the face of the recent "anti-patent" activities of interest and industry groups, Congress, and the administration of the Patent Office. Regardless of Governor Romney's chances at his party's nomination or, ultimately, the Presidency, this letter lifts patent law (at least for a day) into the national policy debate usually limited to issues like Iraq and immigration.
Which, of course raises the issue of what the other candidates think about IP. Senator Barack Obama (at left) has gotten most of his publicity on the issue from his support for a Senate bill banning patents on tax-avoidance strategies (S 2369). However, his official campaign website has the following policy statements about protecting technology and patent reform:
Protect American Intellectual Property Abroad: The Motion Picture Association of America estimates that in 2005, more than nine of every 10 DVDs sold in China were illegal copies. The U.S. Trade Representative said 80 percent of all counterfeit products seized at U.S. borders still come from China. Barack Obama will work to ensure intellectual property is protected in foreign markets, and promote greater cooperation on international standards that allow our technologies to compete everywhere.
Protect Intellectual Property at Home: Intellectual property is to the digital age what physical goods were to the industrial age. Barack Obama believes we need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment while ensuring that intellectual property owners are fairly treated.
Reform the Patent System: A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation. Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation. With better informational resources, the Patent and Trademark Office could offer patent applicants who know they have significant inventions the option of a rigorous and public peer review that would produce a "gold-plated" patent much less vulnerable to court challenge. Where dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity. As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration.
Senator John Edwards (at right) has the following as part of his plan to reduce health care costs:
Improving the Patent System and the FDA: The patent system sometimes encourages greater investment in profitable but minor innovation ("me-too drugs") than in the costly and speculative research that generates true breakthroughs. In 2005, only 20 percent of FDA approved drugs were new molecular entities. In addition, the patent system gives companies long-term monopolies that can make life-saving drugs prohibitively costly for patients. Edwards will convene an expert panel to explore whether there are certain key disorders where prizes for breakthroughs - as an alternative to patent monopolies - would offer new incentives to researchers, guaranteed gains to companies, and lower costs to patients. Prizes would supplement, but not replace, the current patent system. Additionally, Edwards will eliminate loopholes and trade obstacles that block generic drugs and let the FDA approve biogenerics, saving up to $43 billion over 10 years. [Woolley, 2006; Stiglitz, 2005; CAGW, 2007]
Senator John McCain, Mayor Rudy Giuliani, Senator Hillary Clinton, Governor Bill Richardson, Senator Joseph Biden, Governor Michael Huckabee, Senator Christopher Dodd, Senator Michael Gravel, Senator Fred Thompson, Congressman Duncan Hunter, Congressman Tom Tancredo, Congressman Ron Paul, and Congressman Dennis Kucinich do not specifically address intellectual property issues on their campaign websites.
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