The two reports - "Proposed Patent Reform Legislation: Limitations of Empirical Data Used to Inform the Public Policy Debate", which was written by Ann Mills and Patti Tereskerz for the Biotechnology Industry Organization (BIO), and "The Need for Consensus on Patent Reform", written by Gerald Mossinghoff and Steve Kunin of the law firm Oblon Spivak McClelland Meier & Neustadt - take distinct approaches to demonstrating that drastic reforms to the patent system may be short-sighted.
In their White Paper released last Wednesday, Mossingoff and Kunin urge that "the time for reaching consensus is now, so that that legislation can be enacted in 2008". The authors contend that controversial provisions, such as changing the law on damages for infringement and proposals about appropriate venues for patent litigation proceedings, are "unwise" and "need fixing before Congress finishes its work on a comprehensive patent bill".
The BIO report analyzes the findings of three crucial reports published by the FTC, NAS and NRC, each of which have been repeatedly cited by supporters of patent reform as justification for making major changes to the system.
Mills and Tereskerz conclude that much of the evidence presented in these reports was based on "conjecture, anecdote and individual publicized cases rather than upon empirical evidence", and caution against using them as a basis for "overhauling the patent system in a way that could potentially disrupt the incentives of industries that rely on patents to innovate".
Both reports also point out that recent court decisions may have already addressed many of the proposed provisions in the bills and emphasize that passing the bills in their present form could cause confusion.
A White Paper prepared in December by pro-reform group, the Coalition for Patent Fairness, and authored by Viet Dinh and William Paxton of Bancroft Associates, claimed that "the proposed reforms will benefit America's pioneering inventors by providing them with a clear, unencumbered title to their invention and by reforming the legal rules that promote unnecessary litigation over innovation".
Senate Bill S1145 was placed on the Senate calendar as of January 24, and is likely to be debated sometime in February. The calendar notes that the bill was reported "with an amendment in the nature of a substitute", but the text of the amendment has not yet been posted.
The US Senate Committee issued a report in January urging the Senate to pass S1145.
Senator Leahy, the bill's sponsor, is reportedly seeking to secure cloture, which requires a three-fifths majority of the Senate to vote in favour of expediting the bill's passage.
Even if cloture is granted, however, the Senate must still vote to pass the bill, and then a conference will probably have to be held to reconcile it with HR1908, which passed the House of Representatives in September.
