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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New Strategies Galore - Using emotional appeal to kill innovation in medical devices

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Warning: This is an unusually long post..

Here are a couple of paragraphs I have stolen verbatim from the article:

"Dragseth cited the recent case of Dr. Gary Michelson, who in 2005 received a $1.35 billion settlement after suing a medical device company over his patented spinal surgical technique that speeds recovery. Medtronic v. Michelson, No. 01cv2373 (W.D. Tenn.)."

"Last month, a veterinarian who sued a surgical instrument maker over his patented technique for declawing a cat also won his case when the U.S. Court of Appeals for the Federal Circuit upheld his patent. Young v. Lumenis, No. 06-1455 (S.D. Ohio). "

Now let me first acknowledge the article lest, ironically, law.com sues me for freely using parts of their article (which was published after earnest research, and editorial skill for the common good I suppose)

Okay. Let us only look at these two examples. First Medtronic is not the small kid off the block who is being crushed by the Goliath Dr. Gray Michelson. Their positions in fact, would be switched if that were the case...

So what's actually going on? Medtronic, being the big company that it is, picked a problem area, saw a giant market opportunity and developed a product. Dr. Gray Michelson who had done the same thing, except a while ago - and had patented it, decided to sue. Its pure capitalism.

Now, lets imagine if the positions were switched. Let us say, Medtronic contrived of the whole thing, a few scores and some years ago (has to be less than a score for the patent to be valid, so lets say it was no scores and just a few years ago). Then comes Dr. Michelson who wants to perform the same procedure as "Michelson's special procedure". Do you think Medtronic would have said, "Oh, he looks like a poor enough doctor. And he is saving lives. So, let's not go after him..."

If you truly think Medtronic would have said that, I should say you need your head examined (some would say you need a head).

With quite a bit of further ado, let us look at our friendly Vet. Now, are we trying to say that just because a few people are overly taken by the love of their cats (which they buy mostly, thus promoting animal trade) would like to have them treated for cheap, the guy who actually invents the cat-life saving procedure (okay, cat de-clawing doesn't save lives, unless he/she plans to maul your other cats) should not expect to earn a little extra?

See the problem. This world is riddled with idiots. Simply put, their philosophy is "Don't live and most definitely, don't let live".

Innovation equates to and promotes progress. Innovation is needed for us to obtain new treatments. This innovation can grow only if rewarded. Patents are a very good business reward. In both examples above, the companies would have probably had good lawyers scoping the IP field before launching their products.

Don't even think they didn't....

So, in all probability, they decided to deliberately infringe on the patents, though on their life they would never admit it. They probably thought, "Its us, Megabucks Inc. versus single inventor dude. We are sure to win!" Again, not a bad strategy, business - wise. That is what companies do. They try not to own up for their costs as a strategy to reduce costs (thus increasing the miniscule possibilities of their executives paying a much needed visit to prison).

In neither case, would either company have entertained the idea of someone else infringing their patents or even coming close to it...no matter how many lives, cat or human it could have saved. (Kyphon and Medtronic play the merry-go-round of suing each other)

More importantly, if individuals and companies are not allowed to protect and gain monetarily from their hardwork, they would have no motivation beyond their self. And we know how that would go....

Plus, doctors cannot be sued for using procedures, patented or otherwise (unless of course the doctors are not medical, or they are doing it to intentionally cause harm).

Summary: We have now reviewed a very poorly written article, that very poorly through its examples, fails to stand up to a very poor cause.

But who cares? Now "politicians" are looking at "patent reform". And we all know how that story will end...


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