The Leahy-Smith America Invents Act (H.R. 1249) passed the Senate on Thursday, 89-9, after more than six years of work – sometimes sporadic – by the various interested parties. Although President Obama hailed the bill as creating jobs by streamlining the PTO (my words) during his jobs speech to Congress that evening, it is hard to see how adding several layers of pre- and post-grant challenge/review to an already nearly stalled examination process will streamline anything. Eliminating interferences, never much of an impediment for anyone, is not going to solve the backlog issue and neither is charging $4000 plus for expedited examination. I, and many other commentators, have criticized aspects of this bill (See Posts of July 15, 2011 and April 18, 2011), among them the odd, hybrid grace period and the 102(e)/103 consequences of reversing Hillmer. (See, J. Mueller, An Introduction to Patent Law (Aspen 2003) at pages 351-352, if you have forgotten this classic PTO-CCPA debate.)
But sitting on a late Friday afternoon with the 149 page Act in my lap, I just feel tired, and a bit sad. The elegant 35 U.S.C. is going to look a lot more like the tax code by the time it gets reprinted, and 37 C.F.R. may well be multi-volume, like the FDA regulations. After all those years of work, this Act seems unworthy of its sleek forebears – a pastiche of many special interests’ interests including a single law firm, that got a “special bill” passed. (See Sec. 37.) Am I the only one who feels that this bill is turning the patent laws into the tax code? There are 37 Sections with intriguing titles like “Tax strategies deemed within the prior art”, “Study on genetic testing” and “Patent Ombudsman Program for small business concerns” that I am sure will set our collective fingers flying across keyboards. This bill embodies legislative ADHD – open it randomly and put your finger down, and there is a law review article, or at least a note. (Harvard, did you know that your professors may be micro-entities?) I have praised Director Kappos in the past as the hardest working man in IP-biz, but he is going to have to work faster than the Flash to churn out the regulations needed to implement just Section 12 (“Supplemental examination”). The Act passed without difficulty, but Senators as diverse as Boxer, Rand Paul and McCain all voted “No”. They may yet get to do the “I told you so” dance.