Patent reform in 2007 - it’s not what you think

So we’ve officially got a patent reform bill in the 110th Congress (both Crouch and Zura have excellent summaries). Hearings are even underway. So now we’ve all got to watch Congress like a pot of water on the stove, right?

I say no. Right now, Congress is last in line in the patent reform debate, in my eyes.

Why’s that, you ask? It’s simple, really. The question we wanted to have answered by the first reform bill in the 110th Congress is this: How much progress has been made to overcome the giant chasm that separates the stakeholders?

The Patent Reform Act of 2007 certainly fulfilled its purpose. It certainly provided the answer to that burning question - a resounding ‘zero’. Yesterday’s hearing showed us that the 110th, is, necessarily, starting at the beginning….again. We haven’t moved a bit.

Does that mean reform is a dead issue right now? Again, I say no. It’s ironic, really. As legislative reform spins its wheels in Congress, both the courts and the Patent and Trademark Office are working to ensure that significant reform is made.

And they’re doing it now.

Want examples? Try these on for size. Think about KSR (I know you were already). Think about the Federal Circuit’s continued ‘reminders’ [example 1][example 2][example 3] of the flexibility of the TSM test as we wait for KSR. Think about the Amgen denial and the potential Supreme Court review of the Cybor de novo standard for claim construction review. Think about the rules package that is apparently making its way down the pike. Think about MedImmune and its progeny (there’s your reform right there). Think about the continued development of injunctive relief law in light of eBay (settlement tables continue to wobble as we speak). And, as my sleeper pick, think about Eon-Net and its potential effect on egregious troll-like litigation ’strategies’.

Don’t get me wrong…Congress clearly still wants in on the reform business. It’s just going to be a little late to the party.