Patently-O Bits and Bytes No. 13

• The Budgetary Cost of Patent Reform: The CBO has released its cost estimates for the Patent Reform Act of 2007. A net loss of $1.4 Billion. Almost all of the additional cost is easily classified as “pork.” The vast majority of the additional money would be to pay for takings claims created by the neutering of DataTreasury’s Check21 patents.
• Angiomax: The other major pork goes to “The Medicines Co.” to extend the life of its patents covering Angiomax. The company was one day late in filing for its term extension based on FDA delay. (The extension would be almost five years). The Bill would give PTO Director Dudas the power to excuse the filing delay and thus allow the extension. “[W]e expect that [the] PTO would grant nearly five years of additional patent protection to that product.  See also Baristas “Dog Ate My Homework Act.”
• Metabolite: Those wanting a head-start on on Bilski briefing should consider the filings from Metabolite v. LabCorp. [Link] [Link] [Link]
• Patent Reform: Chief Judge Paul Michel on Patent Reform (Transcript of Speech to Meeting of Chief IP Counsel for Major Corporations).
• Additional Design Patent Brief: Ed Manzo noted that I missed one of the Egyptian Goddess briefs. Elite Group argues that broadly interpreted design patents would lead to costly design-around without any associated consumer benefit. [Link]

 

Comments

[M. Slonecker]

The CBO report is at http://www.cbo.gov/ftpdocs/89xx/doc8981/s1145.pdf

[Sideshow Bob]

I saw the provisions about giving the director power to extend various deadlines, but how would that save the bozos in this case? The Senate wording says that the late filing has to be made within 30 days of the missed deadline - if these guys messed up, it happened more than 30 days ago. (BTW, the provision also requires a showing that the deadline was missed unintentionally - that's different than the typical *statement* of unintentional abandonment...)

[green]

SB, they filed one day late.

[patent leather]

Sorry to be off topic, but what happened to the IDS rules? Is the USPTO possibly putting them on hold until resolution of the Tafas case?

[chris mcgeehan]

Patent Leather:

The OIRA review ended on December 10, 2007.

http://www.reginfo.gov/public/do/eoDetails?rrid=114766

While most of the Tafas/GSK argument is inapplicable to the IDS rules, the issues raised in the Polestar brief also apply to the IDS Rules Package. One issue raised repeatedly in the comments and during OIRA review meetings was that the USPTO was significantly underestimating the economic impact and burden of complying with the new IDS rules.

If the Tafas court adopts any of the Polestar arguments relating to erroneous certifications during the rulemaking process, I think the IDS rules will stay in limbo.

[Sideshow Bob]

I realize they filed one day late. So what? That's a nullity - at the time (2001) there were no provisions to cover this situation. The Senate bill, anyway, wouldn't address this situation, since they'd have needed to file within 30 days of the missed the deadline; over at Patent Baristas, the link to the House bill, that apparently is separate from the "patent reform" bill and is directed specifically to this case, doesn't work, so I haven't seen the text of the House bill.

BTW, I wonder if the generic manufacturers could make a case for a taking if Congress actually gives Angiomax an extension here - the generic manufacturers could argue that they relied on the fact that Angiomax missed a deadline, and have accordingly ramped up for production in 2009. Who's going to compensate them for their reliance on the existing statutory scheme? (By comparison, if Angiomax had missed a renewal fee and only got the patent reinstated for unintentional abandonment, others who starting practicing the invention in the interim would have gotten intervening rights, why should it be any different here?) If I'm Angiomax I argue that this isn't a taking any more than the Mickey Mouse amendment to the copyright act was a taking...

[TJ]

Sideshow Bob: good thought, but there is a little problem called Eldred v. Ashcroft, 537 U.S. 186 (2003), holding that Congress can take stuff out of the public domain and hand it over to special interests pretty much whenever it wants (and the petitioners in Eldred had the same reliance on the public domain as you are suggesting).

[EdwinRodgers]

What it says is "those changes would
increase budget deficits (or decrease surpluses) by $1.4 billion over the 2009-2018 period." In other words, Congress would have $1.4 billion less to siphon off from the Patent Office over the 2009-2018 period. The Patent Office has always been a money maker to the Federal Government. Congress should be increasing the money making oppertunities through the Patent Office, not decreasing it. Because Congress will lose money, I don't think this will pass.

[iwasthere]

There it is: WSJ today reporting on Stagflation. All while "the nine" diminish the incentives to innovate and create small business. For what end, to stoke egos and "set policy" addressing the fiction manufactured by the PR machines of the serial infringes? "Patent reform" enormously increasing transaction costs and reducing the incentive to innovate - just when the economy needs innovation and job creation the most. PTO management out looking for their next job while wondering what last carrot it can toss in. This town needs 'change' alright.