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".
