Who Should Be In Charge Of Patent Reform?

from the everyone-wants-their-cut dept

Every year for the past few years, Congress has put forth a patent reform bill. Every year that bill has had serious problems in that it might fix some of the problems of the patent system, but would exacerbate others. And then, of course, there's a big lobbying fight, and the pharmaceutical companies (who don't want any sort of patent reform whatsoever) win -- and the bill gets killed. It's an annual tradition. However, plenty of people still realize that patent reform is necessary, and now they're debating just how it's going to happen.

Apparently, everyone seems to think they should be the ones to determine how it works. At an FTC hearing on the matter last week, FTC Chairman William Kovacic suggested that the FTC should guide the process of patent reform. Meanwhile, Chief Judge Paul R Michel of CAFC (the appeals court that handles all patent cases) disagreed, suggesting (not surprisingly) that CAFC was perfectly capable of handling modifications to patent law, claiming that CAFC had a much better handle on the situation than Congress. Of course, that ignores the long series of problematic CAFC decisions over the past few decades that only slowed once the Supreme Court got involved and started overturning CAFC time and time again.

Of course, what this probably means is that despite plenty of hand-wringing and tons upon tons of evidence of harm done by the current patent system, nothing is going to change any time soon.
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Filed Under: cafc, ftc, patent reform, patents, paul michel, william kovacic

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  1. identicon
    Anonymous Coward, 15 Dec 2008 @ 11:13am


    Anent you not concerning Alexander Hamilton, without expressing an opinion on his economic views I do have to note that he had an incredibly unusual upbringing for someone later to ascend to being one of the Founding Fathers. I was surprised to learn he was born and lived his formative years in St. Croix, served there in his early teens as a bookkeeper for a small shipping company, and was eventually sent to the states with the financial support of certain islanders who believe he was a young man with great promise. If my recollection is correct, at the time he participated in the drafting of the Constitution he was a quite wealthy banker, and his experience informed him of the important need for a uniform monetary system throughout the several states.

    Turning to Jefferson, it is generally believed that he was one of the drafters of the Constitution. Of course, he was not a party to its drafting given that he was then serving as the US Ambassador to France. He did exchange views with some who did participate in its drafting, with the best documented being his discussions with John Adams.

    Now, much is said about his letter dated about 1817 or so. Unfortunately the letter, which of course represents solely his views, if oftentimes "cherry picked" by those who view patents and copyrights with distrust and in many cases would like to see them abolished. In point of fact, Jefferson, like most of his colleagues, was quite opposed to monopolies as they were employed back in England. However, he did make an exception in the case of what eventually became our initial set of patent and copyright laws, but with the proviso that "limited times" should mean just that..."limited". As a general rule patent law has remained fairly true to his "limited time proviso".

    Copyright, however, is totally off the scale. I do not recall the original term of copyright, but for many years it comprised a 28 year term subject to renewal for one additional 28 year term. It was not until the Copyright Act of 1976, which went into effect on January 1, 1978, that copyright drifted towards what is now in place. Now, many people are quick to heap scorn on Congress for the copyright term expressed in the 1976 Copyright Act. Perhaps their scorn is better directed at primarily those countries in Europe having copyright laws on their books. US copyright terms were extended under international treaties requiring that the US adopt longer terms, not to mention change its very formal rules so that they more closely corresponded with european practice. Hence, out laws that were based upon "date of publication" were significantly changed to reflet "date of creation". Our formal system of registration and renewal was largely displaced, as was out longstanding requirement that the use of a formal copyright notice was necessary for an author to retain copyright and prevent his work for falling into the public domain.

    For all of its failings and/or problems, the patent law has retained a much closer nexus to "original intent" than copyright law, the latter of which is largely off the charts.

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