Judge Michel Takes “Patent Reform” Bills To Task

In an interview with Intellectual Property Watch, former Chief Judge Paul R. Michel set forth, in one place, all of the most problematic (Ed.: read, “worst”) features of the Leahy Smith America Invents Act, versions of which have been passed by the House and the Senate.

The interview focuses both on the special interest features of the Senate bill such as those invalidating tax strategy patents and expanding prior user rights. He also notes the weaknesses in the House bill potentially limiting PTO full access to all the user fees it collects. He notes the flaws in the one-year grace period for inventor-generated disclosures and opposes the additional burdens on patentees imposed by post-grant review.

Wearing my patent prosecutor hat, I see little to like about this bill. Its roots are in oft-parroted but flawed analyses that suggest the U.S. economy is somehow being damaged by “flawed patents.” However, almost every feature of the bill simply makes patent protection more difficult to obtain, or weakens patent protection, for small start-ups and universities, as well as for mega-industries. Coupled with anti-patent decisions such as KSR, Bilski and Ariad, (the “jury” is still out on Prometheus, Myriad and Classen) pioneering inventions, particularly in early-stage technologies, are in for a very bumpy ride.

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