GSK to rescue us from USPTO final rules or the "Work Reduction Program"?

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So the public comment period for the USPTO final rules ended around the second week of October and I was a little surprised to see so little action. And then I came across this post on "The Patent Prospector" Blog. GSK is apparently trying to get the courts to take a look at the final rules and how inventors will be unfairly affected by the final rules.

All of this is based on, what is atleast obscure to me, "The Patent Act confines the PTO's powers to regulating internal procedures in practice before the agency." (lifted verbatim from The Patent Prospector Blog)

If you feel adventurous enough, try to read "35 U.S.C. § 2(b)(2). Section 2(b)(2) " and the blog post to understand more of this. Apparently the federal courts have ruled that "Section 2(b)(2) does not confer on the PTO the power to issue substantive rulemakings".

In effect, I am hoping this means, the USPTO simply cannot "do this". That is good enough for me. Thank you GSK! (like someone posted on the comments). However, what I don't get is this: I think in totality there was just one other case filed by an "inventor dude". Other than that, none of these deep - pocketed companies that "believe in product innovation to maximize the value to our customers" make even a half-hearted attempt to fight the USPTO. How not so surprising! Nor were the omnipresent ACLU or any of their frat bros interested.

Well, I hope the courts rule that the USPTO "final rules" are fit for the trash can. Good Enough!!

It must have been quite a party the day they announced their big "work reduction program". Keep your pay checks and have very little to do. Must have sounded great. Next they would have issued rules to say "Claims should fit on one side of an A4 sheet typed in size 12 font and with no less than 2 drawings". Ah, well, those would have been the days...

But is anyone going to do anything to prevent the USPTO from being naughty again in the future? Who is going to tell Santa Claus that while people work hard to make progress in their lives and society, the USPTO decided to distract public money, time and attention to make seemingly illegal "rulemakings" ?



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Patent Reform Act, H.R. 1908: The [infringer] friendly patent reform

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So, I was thinking of all kinds of titles for this one. Let me first get a few of them out of the way,

"I said we need to 'reform' not 'deform' stupid!"

"Infringing a patent? Now Congress is with you"

"So you think we cannot travel back in time? Just look at where Congress and the USPTO are taking innovation..."

"Surely you jest, Congress!"

"Real men don't innovate"

And then, I saw this by the leader of BIO (short for Biotechnology Industry Organization)

"much more friendly for [patent] infringers"

Seems to be a better title. So, the BIO is opposed to these reforms, big deal you say...wait, even the generics guys are opposed to it. So are several legal beagles (just look online for lawyer blogs), and people from every walk of life, including the Bush administration.

We have all been worried about the need for patent reforms, haven't we? After a long vacation in the summer heat, Congress came back to session and decide to speed things up.

No use in wasting time thinking, strategizing and preventing a downward spiral of capitalism, eh.

After all the USPTO is doing its part (with a flawless final rule that will limit the number of claims and requests for application reviews) to cut down on this maverick innovation, why should other branches of government hold back?

When you are proposing a law, and no one in particular seems to like it , and everyone in general hates it, you may want to take a hint, or two, or three....

Since you may have read some well written articles ridiculing the various badly thought out propositions made by these reforms, I wanted to highlight the one I have the most beef with.

One of the crazy provisions of the new reforms requires that the victim (or the infringee, if you want to be cynical that way) has to prove that the infringer has violated all aspects of a patent to claim compensation.

Also, here is the big laugh, the amounts paid out on the claims will be directly proportional to the impact the infringement has on the product sold through such infringement. If this becomes law, courts will, in future be limited in terms of how much they can hand out by way of judgement.

This is not a reform. This is some Neandarthal attempt at dividing the spoils.

So now there are two motivating energies at work:

Positive - The infringers now have a lot of incentive to go ahead and walk all over your patents. First off, the burden of proof that all of your patent was infringed on, leans a little more heavily on you. Secondly, you will now have to run around with a calculator, trying to work out how much "impact" your patents' infringement had on the infringers' profits....

[If you remember the story of the poor guy who invented and patented wind shield wipers and nearly, literally lost his mind spending the rest of his life trying to get all the big automakers pay, you will understand why this just got a whole lot worse...]

Negative - Well, if you are a small time guy or gal, it is now going to cost more to patent anything, courtesy the new final rule laid down by your friendly neighborhood USPTO. And if you do get one through, it will cost you an arm and leg to defend it. So, you might as well give up...

But see, in the great ying-yang, Congress solved our problems. If patents go away, infringement goes away, ethical issues go away, patent infringement lawsuits go away...so what if innovation also goes away. Innovation is the root cause of all patent evil, anyway.

Some great thinking went into this. And to think, this "reform" was sponsored by someone from California...

Potentially Horrifying Footnote: The above highlighted problems are not the only ones with these reforms....

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The USPTO: Killing innovation, 5 claims at a time...

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So, too many patents are being filed. Yes, maybe there are not too many people innovating, but just folks trying to protect everything under and above the sun...

It is becoming harder to review patents...

Too many companies are fighting over them...

And, of late, the work has started becoming strenous...

Voila! The new rules of USPTO ensure that not only will all these problems go away but they will also ensure that ALL logic will be defied!!! After all, isn't it the first duty of the government to ensure that over time its services become limited, confounded, expensive and anti - public?

Why would I only have five independent claims to a patent? Why is 5 the magic number? Why cannot I have more than 2 reviews to extend my patent? And why did this just become more expensive for me ? (In case you didn't notice, the person(s) filing the patent now have to do some of the USPTO's work...)

If there is any glimmer of hope to save us from deliverance by the USPTO, it would be the public comment period ending October 9. Hopefully, this doesn't promote other branches of the government to adopt the USPTO philosophy. After all, there has been all this talk about free speech and how everybody wants it.....

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