Are The Stars Aligned For US Patent Reform This Year?

In a week in which the United States Congress is fighting to avoid a government shutdown over budget disagreements and political posturing is high, technocrats and friends of innovative businesses are working to get passage of a bill to reform US patent law. [Update: the Senate has passed the patent reform bill manager’s amendment, attached below.]

The Senate passed the patent reform bill, referred to as the “manager’s amendment,” with amendments. A copy provided by the Senate Judiciary Committee is available here [pdf].

It remains to be seen if in this new Congress, the bill will finally meet with passage in both the Senate and the House of Representatives (which is traditionally the more difficult forum to get it through). US Commerce Secretary Gary Locke told reporters today that this could be the year.

“The stars are really aligned better than ever before,” he said on a telephone conference call. “Many of the issues that divided the different industry segments have dissipated.” Those past “vexing” issues include damages and venues, he said. The Obama administration said yesterday it would be acceptable to drop the provisions on damages and venues.

The bill, which is on the Senate floor today but finding it difficult to draw many senators, appears to be being positioned as the type of gesture government can take to boost the economy and jobs, especially through streamlining the patent filing process with in the US. President Obama has identified passage of patent reform to reduce waiting time for patent applications as imperative to “winning the future,” officials said, as it will free up some 700,000 innovations sitting in the agency waiting to be processed.

A statement of administration policy was issued yesterday, available here [pdf].

The Commerce Department, which includes the US Patent and Trademark Office (USPTO), has been working all available channels, he said, including working with the key Senate and House offices, and constant contact by the offices of Locke and USPTO Director David Kappos with various industry leaders in order to identify differences. There also has been “good outreach” between the offices of bill sponsor Sen. Patrick Leahy, Democrat from Vermont, chair of the Senate Judiciary Committee, and the House side proponents, he said.

“The time is definitely now,” Kappos told reporters. “I’m very optimistic that we’ll get it done” and that it will be acceptable compromise legislation.

But when asked to answer to opposition stated yesterday by high-technology industry (IPW, IP Live, 28 February 2011), Kappos did not address most of the specific concerns raised by the group and other doubters, saying instead that all sides would have to adopt a spirit of compromise and all would have something to gain.

For instance, it is unclear to what degree the proposed “first-inventor-to-file” provision would really harmonise US patent practice with that of the rest of the world (which uses a first-to-file system for patent grants).

The tech industry also raised questions about tax patent provisions that have been added. And, despite what was said to assuage the issues of damages and venue, those were still of concern.