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By Andrew Noyes
© National Journal Group, Inc.
LOS ANGELES -- Legislation that would drastically alter the U.S. patent system has at least a 50 percent chance of passing in this Congress, Patent and Trademark Office Director Jon Dudas predicted Wednesday at the Tech Policy Summit.
He told CongressDaily he is “much more optimistic because a very real conversation has begun.”
The Commerce Department spoke out against some elements of the bill in a February letter to Senate Judiciary Chairman Leahy, but “it is [the] will of the Bush administration to get this through,” he said. PTO officials have met with many senators and their aides in recent months and have encouraged them to support modifications to the measure.
Nathaniel Wienecke, the Commerce Department's assistant secretary for legislative and intergovernmental affairs, wrote the letter to Leahy, who sponsored the legislation with Sen. Orrin Hatch, R-Utah. Wienecke vowed continued opposition to the bill if language regarding damages in infringement lawsuits does not change.
That section “will create more problems than it solves” by making inventors more vulnerable to infringers, he contended.
Senate Majority Leader Reid wants to bring the bill to the Senate floor in April and stakeholders have recognized they must find a solution amenable to all business models for that to happen, Dudas said. “My sense is that we’re getting closer to that,” he said, noting the focus must be how to give judges the tools to inform juries rather than mandating certain factors that would pick a winner in a patent dispute, he said.
The administration supports other portions of the bill, including a proposal for creating post-grant patent review procedures that could be an alternative to pricey litigation for those who want to challenge a patent’s validity.
“Patent law is not as simple as gun rights” where the fans and foes are easy to define, said Dudas, who was slated to speak about the bill to a group of inventors and small business representatives in Las Vegas at Reid’s request.
The complexity of the situation was further articulated at the Tech Policy Summit by Qualcomm Chief Executive Officer Paul Jacobs, whose wireless company is both a product manufacturer and a licenser of technologies. “We sit on both sides of the issue,” he said.
Qualcomm was one of the founding members of the Innovation Alliance, which has led the opposition to Leahy's bill and a companion measure that passed the House in September. Qualcomm has earned a litigious reputation “but a lot of people come attack us,” Jacobs said.
“It’s easy for some company to come in, stretch a patent very broadly in a way that it was never thought of originally and when you go to trial it’s difficult for the jury to understand a lot of these complex issues,” said Jacobs. Sometimes the best lawyer wins a case as opposed to the best technology, he added.
Back in Washington, the patent lobbying blitz continued this week. More than 1,000 organizations signed multiple letters registering their displeasure with provisions of the Senate bill. The Coalition for Patent Fairness, which has championed the legislation, sent about the same number of letters from their supporters.
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