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Leahy Post-Bilski Comments and Patent Reform

By Peter Zura

As the summer recess approaches, it is all but certain that Congress will (again) postpone efforts to enact patent reform.  Since the manager's amendment (S. 515) was forwarded to the Senate in April, very little has been done in advancing the legislation.  Senate Judiciary Committee Chairman Patrick Leahy is understandably frustrated over the lack of any progress, stating in a recent interview "I don't know why this hasn't gotten floor time . . . This has nothing to do with ideology. We need an updated patent system to create and protect jobs, and it wouldn't add a penny to the deficit."

For whatever reason, Leahy apparently believes that the manager's amendment is a "done deal" in the Senate, and will be passed quickly, once the Senate has a chance to vote on it:

Leahy noted that the bill has three Republican co-signers, along with three Democrats. As a result, he predicted that once it gets floor time, the bill could get passed in just three days -- a blink of an eye compared to the marathon sessions it took to get stimulus, health care and financial reform passed.

What is even more interesting is that Leahy has openly come out against business method patents after Bilski, and appears to be under the impression that patent reform legislation can "fix" what Bilski could not.  From Leahy's website:

In Bilski v. Kappos, the Court unanimously affirmed the judgment of the Federal Circuit that the application for a patent on a business method should be rejected.  The Court?s opinion, joined by only five of the Justices, however, needlessly left the door open for business method patents to issue in the future, and I am concerned that it will lead to more unnecessary litigation.

Since the debate over comprehensive patent reform began many years ago, the Supreme Court has demonstrated an increased interest in patent law cases.  The Court?s decisions have moved in the direction of improving patent quality.  While today?s decision will take time to analyze and may not have advanced the law and created the stability and certainty that it could have, it appears to continue this trend, which is consistent with the goal of patent reform legislation pending in Congress.  The courts, however, are constrained by the text of our outdated statutes, and it is time for Congress to act.?

In the meantime, scholars, attorneys and businesspeople have continued to publish critiques of pending patent reform legislation, pointing out that many aspects of the Patent Reform Act have unintended, and potentially adverse, consequences.  Most recently, Medical Innovation & Business ran a special edition on patents and patent reform, which included articles such as:

Patent Reform: Effects On Medical Innovation Businesses
Kaswan, Renee; Boundy, David; Katznelson, Ron

Dowd, Matthew J.

Full post as published by Two-Seventy-One Patent Blog on July 01, 2010 (boomark / email).