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After nearly10 years of finagling, patent reform legislation is on its way to the President, who will sign it (Obama does not veto; see here). This gives me a perfect opportunity to wax poetic on all manner of patent issues, issues which coulda and shoulda been addressed in the bill, but weren’t, at least not how I woulda liked. As my colleague, patent attorney Mark Malek, recently wrote in an all-too-true article, the bill is not what it could have been, especially since it diverts USPTO revenue away from the USPTO. But this is death by a thousand cuts.
As IP expert Christopher Sprigman said, “Congress has lost any capacity to piece together these private interests into a public-welfare-promoting change to the patent system. It’s really not about optimization anymore, it’s about which faction is going to win out.” The last minute wrangling in the legislature added the equivalent of pork to the bill for everyone from patent trolls to giant tech firms to lawyers from the Eastern District of Texas! But don’t worry, big pharma wasn’t left out.
In a specific provision that hit home for me, Wall Street jumped into the fray, fight over over a patent on debit card swipe fees, which have apparently cost the financial industry over $400 million. Boo hoo. I wonder if that’s why SunTrust told me they’re going to start charging me $5 per month for the privilege of using a debit card (needless to say, I’m no longer with SunTrust – I’m a principled man). Business method patents like this have been a problem for a while, and the bill doesn’t help everyone, just the banks (thanks, Chuck Schumer!).
The bill did not change patent troll hallmark of taking an existing technology and adding “over the internet”, or “on a smartphone” to get a new patent. Pharmaceutical patents are different than most others: a drug patent requires only the chemical compound in the drug. That’s it! A chemical compound either is or isn’t. There’s no gray area, no need for never-ending patent searches and no point to being a patent troll. Needless to say, drug companies was tight patent law and harsh infringement damages. Our current patent regime protects drug patents very well. Obviously, it does not promote the public welfare, at least compared to the rest of the world. We’re the only country that gives out drug patents without regulating drug prices. But you already knew that, since you pay $200 a month for that medicine that’s keeping you alive. Big Pharma is still a big winner here, maybe the biggest – but that’s been the case for a while, and that’s enough illustrations of terribleness.
Who are the winners? Patent lawyers, undoubtedly. See Mark’s article for why. Who else? Patent litigators, for sure. Trolls are still out there; the bill did not shine light on them, and they most certainly have not been turned to stone. The bill should have created different systems for different techs. Drugs are different from mousetraps, and mousetraps are different from debit card fees. We need different standards. Patents are necessarily complicated, and the law must reflect that, not ignore it. See here for the Obama administration’s PR vision of what could have been. I wonder what the spin will be now that it mostly failed.
