Negotiations in the Senate on patent reform bill S. 1145 seemed to break down this week after Sen. Arlen Specter released a statement saying:

The Chairman [Sen. Leahy] and I differ on a number of aspects of the proposed patent reform legislation. . . . . The principal sticking point is the issue of how to assess damages in patent infringement lawsuits. We thought we had reached an agreement on this matter, but the language continued to shift, so we do not yet have a deal on the package. I am hopeful that we can reach an agreement, but more work has to be done to get it right.

The crumbling continued after Sen. Jeff Sessions apparently withdrew his support for an amendment to the patent reform bill that would exempt banks that unlawfully use patented check imaging technology from paying damages. The provision would have required the federal government to pay $1 billion to DataTreasury over 10 years as compensation for taking its property under the amendment (read: your tax dollars). Now Sessions says he will no longer support the amendment because of questions about its constitutionality.

Amici briefs for and against software and business method patents are flying at the CAFC over Ex Parte Bilski. The sides are lining up pretty much as you’d expect as everyone tries to influence an en banc Federal Circuit panel that will reconsider the scope of patentable subject matter as it relates to business methods. Most of these briefs support Bilski and urge the CAFC to not change section 101 — that is, keep a relatively broad view of what is patentable subject matter. A good summary on the briefs is at Patently-O.

This probably won’t end the heated debate over the threshold for patentable subject matter, though, as many parties are just flat out against patenting of business methods. Among the questions to be answered are: When does a claim that contains both mental and physical steps create patent-eligible subject matter? Whether a method or process must result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter under section 101?

A controversy has been brewing over the MBA degree of Heather Bresch, Mylan’s COO, after a Pittsburgh newspaper questioned it. West Virginia University officials awarded her an MBA retroactively last October. (via Pharmalot)

Cincinnati Reds inked a deal to hold spring training in Goodyear, Ariz., in 2010. The Reds and Cleveland Indians will share a 10,000-seat stadium.

The Federalist Society has just put the latest edition of its journal Engage online, with individual webpages for separate articles, so as to make it easier for bloggers to link to us. I’m sending you the journal in case you find something of interest.

Fortunately for bloggers, we can now get aromatherapy with our laptops. (via Securing Innovation)

All I want now is my 3G iPhone.

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  1. Not sure sure if the Patent Reform Bill is completely a lost cause at this point. Specter’s comments are noteworthy for the legislation as a whole, but there are strong arguments why the Check 21 Amendment in particular has support in Congress.

    Check out this op-ed, penned by Asa Hutchinson, a former Member and practicing attorney, that makes the case:

    “Let’s be clear: A company should be compensated for a competitor’s infringement on its patents. The question, however, is whether Data Treasury has valid patents for having laid claim to commonly used processing methods that banks, financial institutions and others had been using for years.

    The claim of the patent holder in this case, compared to the national-security needs of the nation, is further undermined when it becomes clear that the company in question neither invents new products nor sells them. To quote the New York Times, this is a company “whose only business, other than one client, appears to be suing other companies.” (“Small Company is Specializing in Suing Banks,” New York Times, Dec. 24, 2004) One issue that rises above the validity of the patents is the role of the federal government in prompting the private sector to take certain actions. When the government dictates to the private sector, inevitably the latter faces certain costs. This is why government interference in the private sector should be done with extreme caution.

    In this case, due caution was given, but the enormous responsibility for the safety and security of American citizens outweighed the specific and narrowly tailored costs to the private sector.

    To address this unintended obstacle to realizing its intent, the Senate Judiciary Committee introduced bipartisan legislation that passed unanimously last summer. The legislation would protect the financial system, respect legitimate intellectual property rights and prevent frivolous lawsuits by clarifying the regulation for the financial system, for national security purposes, to efficiently process checks and transfer funds.

    As patent-reform legislation heads to the full Senate for a vote, it’s critical this legislation be included. Speedy passage will ensure that we close critical gaps in our nation’s financial security that should have been addressed years ago.”

    The full piece is found here:

  2. jbe88 —

    I agree, the bill doesn’t seem to be dead — Senator Specter merely noted that a better agreement had to be reached. I believe that our legislature is smarter than to drop such an important bill, especially the Check 21 amendment. The provision is intended to save the American public money, not increase cost, as the roundup might suggest.

    On September 11, planes were grounded and the U.S. lost A LOT of money (Note: this is YOUR money) in a very real way. We are still feeling the effects of this economic instability and one of the large contributing factors to economic slow down in the wake of the attacks was the delay of paper checks on the ground. If this happened again, tax payers would pay a much larger load than the proposed Congressional payback. Without passing this bill, Congress would allow Data Treasury to continue with their frivolous law suits that hinder the security of banks and our national economic security itself.

    The company holds a patent to a process that it neither created or expanded — it only reaps the benefits from suing banks at exorbitant cost to the financial industry. The threat of suits has made medium and small banks unable to employ the important technology in fear of being victimized by Data Treasury suits. Since many Americans still bank with small institutions that have not been able to use electronic check processing, the economy will suffer in the case of another attack — as it did in 2001.

    I can’t help but think that Congressmen and women are too smart to throw this opportunity out. Data Treasury needs to be stopped.

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