from the incredible dept
Okay, this one is incredible. As you may recall, back in September of 2011, the “America Invents Act” became law. This was a “patent reform” proposal that had been debated and changed and debated some more for about seven years before finally getting approved in a greatly watered down fashion. We criticized the bill for doing almost nothing to deal with the real problems of the patent system, but there were some incredible, fundamental, blatant mistakes in the final bill. You’d think that with seven years of debate and tweaking that such mistakes would have been whittled away. The first clue to some serious problems was in an analysis by Mark Lemley soon after the bill was approved in which some drafting errors were apparent just in looking at the “effective dates” of various parts of the bill.
Over time, it became clear that Congress had left significant errors in. Recently some of the key people behind the bill admitted that there were errors in the bill, with Eli Lilly’s General Counsel, Bob Armitage, stating: “There are a few minor errors in the bill and one major error in the bill.” What’s the “maajor error”? It’s the part on “estoppel” in “post grant review.” Basically, there’s a provision in the bill which encourages people to seek “post grant review” of questionable patents in the first nine months after they’ve been approved. In talking about this, Congress was clear that it wanted to encourage more people to use this, and so it wanted to remove barriers. One of those was to make it clear that failing to raise issues during the post grant review shouldn’t prevent those issues from being raised later. However, the actual language of the bill says that any issue that “could have been raised” can’t be raised later.
As law professors Eric Goldman and Colleen Chien note, it’s clear that Congress didn’t mean to include this language. The committee report on the bill and direct quotes from both House and Senate sponsors of the bill (Lamar Smith and Patrick Leahy) admitted that this was a mistake:
By all accounts, in the AIA, Congress intended to remove the “could have been raised” language and provide a narrower estoppel for PGR proceedings. As the Congressional committee report explains, the PGR was designed to “remove current disincentives to current administrative processes.” But something funny happened on the way to the Congressional floor, and the problematic “could have been raised” language was inadvertently inserted into the bill.
We’re not the only ones to recognize the error. House Judiciary Chairman Lamar Smith referred to the AIA’s PGR estoppel standard as “an inadvertent scrivener’s error.” Senate Judiciary Chairman Patrick Leahy, in advocating that the Senate adopt the technical corrections bill, said the PGR estoppel standard in AIA was “unintentional,” and it was “regrettable” the technical corrections bill doesn’t address the issue. Sen. Leahy expressed “hope we will soon address this issue so that the law accurately reflects Congress’s intent.” The PTO also thinks Congress made a mistake, saying “Clarity is needed to ensure that the [PGR] provision functions as Congress intended.”
To fix some of the errors in the AIA, Congress rushed through a “technical corrections” bill, intended to fix some of the problems with the bill. During all the fiscal cliff mess, with some back and forth between the House and Senate, they approved this bill which will be signed any moment, if it hasn’t been already.
Just one problem. For a bill about technical fixes, it didn’t actually address this one admitted major error in the original bill. Yeah, they left that one out.
Let’s recap, because this is quite incredible:
- Congress spends seven years debating patent reform.
- It finally approves patent reform in late 2011, and despite seven years of debate, had a ton of clear errors in the drafting of the bill.
- The official sponsors of the bill flat out admit that there’s a major error in a part of the bill that they did not intend to be in there.
- A year plus later, Congress finally introduces a bill to “fix problems” in the original bill.
- This “technical corrections” bill does not fix the one major problem that all admit was a flat out mistake in the original bill.
And people wonder why Congress’ approval rating is so low.