Out-Law News 2 min. read

US presidential campaigns clash on patent law


Intellectual property advisors to both US presidential candidates have said that the US patent system is in need of reform. The advisors told a meeting at last week's Democratic Conference that patent quality must be improved.

Patents in the US are a controversial issue because many activists believe that they are awarded too easily with not enough attention paid to previous inventions. In the US a patent cannot be awarded for a previously invented technology. In many other countries a patent cannot be awarded for an invention for which someone else has already applied for a patent.

Businesses such as those in the pharmaceutical and technology industries, though, have argued that patents should not be too heavily restricted because that would impede their ability to earn money from research they carry out.

Democrat Party candidate Senator Barack Obama has proposed a radical solution to the problem of too many poor quality patents. He wants to see the creation of 'gold-plated' patents. These would be subjected to more rigorous search processes and would be considered by courts to be stronger when awarded than normal patents.

Edward Reines spoke on behalf of Republican Party candidate Senator John McCain. He said that the idea is deeply flawed.

"The only real concrete proposal made [by Obama] is for gold-plated patent," said Reines. "[I don't like] the idea that we're going to fix things…[by creating] some elite class of well-funded gold plated patents which would be special, which would receive some super-heightened presumption of validity, leaving those who can pay the normal fees and don't have a silver spoon in their mouth when they're born with normal patents and no presumption of validity."

"I think that's an example of the professorial class that sounds good as a speech and sounds good as an academic concept, but in terms of the actual execution is more trouble than it's worth," said Reines.

Duke Law School professor Arti Rai, who represented the Obama campaign, said that it was not the case that the gold-plating would only come at a very high price.

"The gold plating has nothing to do with the fees you'd pay, the gold plating has to do with the rigorousness of the examination," she said. "The fees could be tailored so that small entities pay much less as the patent office already does so it's nothing to do with the fees you'd pay."

Reines said that wider patent reform is essential.

"What we need to do is reform the patent office. Senator McCain has been clear that he's going to make sure there's adequate resources for the patent office," he said. "If the question is who's going to take the bureaucracy that's been criticised by virtually everybody and make it better, is that going to be someone like Senator McCain with experience and a conservative philosophy on government? Or is that going to be someone who sees government as a solution in terms of gold-plating and everything else? I ask you to make up your own mind on that."

University of Virginia law professor Christopher Sprigman, of the Obama campaign, said that all sides of the debate now agreed that patent reform is necessary.

“I think we are going to get some form of patent reform in part because there is a growing consensus that there are elements of the patent system that can be made better,” he said.

Though Reines told the audience that McCain would try to prevent forum shopping, the prosecution of meritless cases and litigation abuses, Sprigman said that there was no evidence that McCain had ever actually formulated a policy on these matters. He said that Reines' comments were "the rhetorical equivalent of vapourware".

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