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Rai's wrong on reform

By Lawrence B. Ebert, Esq.

Artie Rai, who wrote a guest editorial on why the district court decision in Tafas was wrongly decided, is back on Patently-O with a guest editorial on why Barack Obama is good for the patent system.

Some comments:

For example, requiring disclosure of prior art by applicants (who presumably know a lot about their area of invention) might seem sensible. But the reasoning behind the policy is undermined if the Federal Circuit decides to invoke a highly aggressive doctrine of inequitable conduct. [IPBiz note: applicants ARE currently required to disclose prior art they know.]

For example, the Senator says that when "dubious patents are being asserted, the PTO could conduct low-cost, timely administrative proceedings to determine patent validity." Thus he comes out in favor of a "second window" for post-grant administrative review of patent validity at the time the patent is asserted. [IPBiz note: the PTO can conduct Director-initiated re-exams, as happened in the Eolas case. What "low-cost, timely" proceedings have to do with the "second window" of post-grant opposition is not clear. Rai seems to have entered fantasy-land.]

Moreover, at least in the long term, the availability of this option might reduce the incentive to file dubious patent applications in the first instance (and hence might reduce the current backlog of over 700,000 patent applications). [IPBiz note: re-exams have been around for years. In fact, PubPat (Rai is on the Pubpat Board of Directors) filed three re-exams against the WARF stem cell patents, and was totally smoked. The prior art cited by PubPat was found not enabled, and the declarations conclusionary. What does Rai have to say about the dubious, non-enabled, and conclusionary re-examinations that PubPat filed?

Of Barack Obama, Rai wrote: Senator Obama's approach reflects a nuanced understanding of the concerns of the various stakeholders. It also reflects an ability to rise above narrow interest group politics and suggest creative solutions not contemplated by the interest groups most active in the latest round of the Congressional reform wars.
Rai contributed to Obama's campaign. [Cisco's Mallun Yen contributed to Hillary's.] What "creative solutions" Rai had in mind are not clear. "Gold plated" patents are a recycled Lemley-ism, and hardly creative. PubPat's amicus brief to the CAFC on Tafas was a batch of recycled Lemley-isms, mostly disproved now. Rather than a creative approach, Obama's approach to patent reform is law professor re-tread.

Some comments on Professor Rai from Patently-O:

I find Ms. Rai to be aggravating because she seems to make rather unfounded assumption that most people filing patents are doing it just for the entertainment value, and don't actually consider their patents to be worth anything. If you read Lemley's article (another career academic who's never been a patent prosecutor) you'll see exactly that. He assumes that inventors file patents just for kicks.

She's [Rai's] not a registered patent agent or attorney. Never worked in the private sector. Academic through-and-through. No wonder she's full of it.

See also-->

http://ipbiz.blogspot.com/2008/07/consumerwatchdog-and-pubpat-theyre-back.html

Full post as published by IPBiz on August 04, 2008 (boomark / email).