Patent Reform

 

Abstract
Jorge Contreras

In this informal session, we will exchange ideas, opinions and concerns regarding the subject of “patent reform”, a term that means different things to different constituencies.  In the U.S., “patent reform” is a general label that has been applied to a set of amendments to the Patent Act that are currently pending before Congress.  These amendments will, if enacted, convert to U.S. from a “first to invent” filing system to a “first inventor to file” system, enable third party post-grant oppositions, address issues of Patent and Trademark Office “fee diversion”, eliminate incentives to sue for false patent marking, and a variety of other technical amendments.  We invite input on the advisability and likely effect of these proposed amendments.  Will they bring needed efficiency and improve the current patent landscape in the U.S.?  Will they create large numbers of jobs, as some have argued?  Or will they hinder innovation with additional routes to litigation and delay?

Not surprisingly, the legislation currently before Congress was the result of a lengthy negotiation process, and a number of potentially important provisions were struck in order to secure Congressional support.  Among the provisions struck was a proposed liability exemption for “second opinion” genetic testing (a direct response to the “Myriad” genetic testing litigation currently before the courts).  We also invite input on the political choices that led to the elimination of these provisions in order to secure support for the overall legislation.  Was it worth it?  What should supporters of the stricken provisions do now?

Finally, we hope to engage in a dialog regarding Patent Reform 2.0.  That is, once the pending legislation becomes law, will the job be done?  What additional reforms or amendments might be needed in the future, how soon are they needed, and how likely are they to be enacted in the current political climate?  In essence, what should the next steps be, if any, in patent reform?

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