obvIPat - Obviously Patentable

The blog for inventors, in-house counsel, & entrepreneurs.

Patent Reform: The Senate Closer To Cloture

by Orlando Lopez

Scheduled for Tuesday, September 6, at the U.S. Senate, is a cloture vote on a motion to proceed to the House Patent Reform Bill.  By considering the House Bill instead of a committee version, the Senate is considering a watered-down version of the prohibition against fee diversion (taking money from the USPTO and using it for other purposes, referred to as robbing Kappos to pay Paul) and a previously invented defense against infringement.  Both of these two provisions are unpopular with patent practitioners.  The previously invented defense, which allows an infringer to escape because the infringer had invented the patented invention before the patent owner, also conflicts with the “promoting the useful arts” provision of the Constitution.  The Senate embarks on this debate on the heels of the publication of a survey showing the unpopularity of many of the Patent Reform Bills with practitioners, and on the heels of the publication of an article showing the negative effects of the first to file system patent filings by small entities.  Many of us are willing to pay the price of first to file in order to see the end of fee diversion.  We will wait and see what develops in the Senate, although in today’s climate we have reduced expectations.

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