Patent Reform
A consortium of technology companies is lobbying Congress for patent reform. According to the article, the two main things the consortium is asking for are (1) adopting a "first to file" rule to replace the current "first to invent" rule, and (2) messing around with remedies and damages for patent infringement. This should be interesting.
The first to file rule has always been controversial. Everywhere else in the world where patent rights are recognized, if two people invent the same thing and one files a patent application first, the first filer gets the patent. Period. In the United States, the second filer can get the patent if he shows that he actually invented the technology before the first filer. Needless to say, this creates a lot of complications in patent cases and a lot of money for law firms.
The attraction of the first to invent rule is that it bestows the benefit of intellectual property ownership on the first person to actually develop the subject matter of the property. This is a nice idea in theory, but there are at least two reasons for adopting the first to file rule. First, it would bring us in line with the rest of the civilized world in terms of the way we treat intellectual property (something that's increasingly important what with the international trade and all).
Second, and more philosophically, it would implement a more progressive construction of intellectual property rights. Intellectual property lacks the trappings of traditional property, and the precise contours of IP rights have always been hard to define. For this reason, the government has always been deeply involved in creating and interpreting IP rights. Imposing a first to file requirement would make it clearer that IP rights are government-created, and one of the steps in securing those rights is asking for them in a timely manner.
Regarding remedy reform, this is definitely something that courts have had problems with. The eBay case didn't do much to clarify the injunction standard, and the Blackberry fiasco, which ended in settlement, didn't create any helpful legal precedents. Interestingly, the article claims that Congress' interest in this field was prompted in large part by fear among Congress members and staffers that their Blackberrys would go dark. This may be a needlessly self-interested justification for taking up legislation, but ideally the experience will lead lawmakers to take a more down-to-earth view of patent enforcement.
The first to file rule has always been controversial. Everywhere else in the world where patent rights are recognized, if two people invent the same thing and one files a patent application first, the first filer gets the patent. Period. In the United States, the second filer can get the patent if he shows that he actually invented the technology before the first filer. Needless to say, this creates a lot of complications in patent cases and a lot of money for law firms.
The attraction of the first to invent rule is that it bestows the benefit of intellectual property ownership on the first person to actually develop the subject matter of the property. This is a nice idea in theory, but there are at least two reasons for adopting the first to file rule. First, it would bring us in line with the rest of the civilized world in terms of the way we treat intellectual property (something that's increasingly important what with the international trade and all).
Second, and more philosophically, it would implement a more progressive construction of intellectual property rights. Intellectual property lacks the trappings of traditional property, and the precise contours of IP rights have always been hard to define. For this reason, the government has always been deeply involved in creating and interpreting IP rights. Imposing a first to file requirement would make it clearer that IP rights are government-created, and one of the steps in securing those rights is asking for them in a timely manner.
Regarding remedy reform, this is definitely something that courts have had problems with. The eBay case didn't do much to clarify the injunction standard, and the Blackberry fiasco, which ended in settlement, didn't create any helpful legal precedents. Interestingly, the article claims that Congress' interest in this field was prompted in large part by fear among Congress members and staffers that their Blackberrys would go dark. This may be a needlessly self-interested justification for taking up legislation, but ideally the experience will lead lawmakers to take a more down-to-earth view of patent enforcement.
posted by aj at 10:42 AM
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