The Patent Office Professional Association (POPA) has weighed in on the patent reform fiasco and has sent a letter to the House Judiciary Committee and a letter to the Senate Judiciary Committee opposing the Patent Reform Act of 2007 (H.R. 1908/S. 1145) and provided a copy of POPA’s position paper on the legislation.

POPA believes that the Act, as presently written, will weaken the U.S. Patent System. POPA opposes the Applicant Quality Submission because the USPTO wants to transfer the search from patent examiners to patent applicants, bypassing the outsourcing protections of 35 U.S.C. 41(d).

POPA also opposes changes to lessen the penalties for inequitable conduct, substantive rule making authority for setting new types of fees, eliminating the Best Mode requirement, changing to a first-inventor-to-file system without a grace period for inventors, and changes to the apportionment of damages in infringement cases.

Specifically, POPA’s position is:

1. Applicant Quality Submissions (AQS). The search is a critical part of the examination process and should remain an inherently governmental function performed by patent examiners who are free of conflicts of interest. 37 C.F.R. 1.56 already places a “duty of candor” on patent applicants to disclose relevant information to patent examiners. The AQS is unnecessary.

2. Inequitable Conduct. The legislation would effectively remove inequitable conduct as a defense in infringement cases by first requiring a finding of prior art that invalidates the patent claim. If the claim is already invalid on the basis of the prior art, the issue of inequitable conduct becomes moot.

3. USPTO Funding and Fee Setting Authority. While POPA supports allowing the USPTO access to all its fee income, they believe that continued Congressional oversight is necessary to insure efficient operations of the agency and to safeguard against elimination of outsourcing protections. The authority to create or eliminate fees, however, should remain with Congress.

4. Best Mode Requirement. The best mode requirement represents the very quid pro quo of the patent system. Eliminating the best mode requirement would significantly diminish the very worth of the U.S. Patent System as a driver of innovation.

5. First Inventor To File. POPA opposes the adoption of a first-inventor-to-file system unless and until foreign patent systems provide for grace periods for inventors analogous to existing U.S. patent laws.

6. Apportionment of Damages. POPA believes that existing laws and guidelines on damages are sufficient and should remain intact.

They followed-up with their own list of needed changes, stating:

A far simpler solution to the prior art problem is to retain experienced and highly skilled patent examiners and provide them with sufficient time and resources so they can uncover the relevant prior art during examination. The job should be done right the first time. Despite increasing complexity of applications and growing volumes of prior art, the time allocated to examining a patent application has not changed since 1976.

To provide examiners with sufficient time, Congress should legislate a direct allocation of time for examination. The average time goal for examiners should equal the average total filing fee per application (Filing, Search, Examination and Excess Claim and Specification fees) divided by the average examiner hourly salary. The total filing fees represent approximately 30% of the agency’s patent fee income, leaving more than two thirds of the agency’s total patent fees for overhead expenses.

POPA Position Paper

Also see: AFL-CIO Letter

So, who has all this “reforming” been good to? Elected Officials.

  • Silicon Valley
  • Small Businesses
  • Patent Trolls
  • Lawyers
  • Congressional Campaigns

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