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How nine judges could eclipse Obama

James Nurton

The White House announcement on patent trolls has certainly grabbed attention. But for real change in patent law, look to the US Supreme Court

It’s a week since the presidential pronouncement on patent trolls, and everyone has had their say. Time magazine tells us “Everyone should care”; The Economist notes (with a neat image) that “Obama goes troll-hunting”; and even one “notorious patent troll” says it supports 10 of the 12 proposals.

As political initiatives go, the Obama plan has met with surprisingly widespread approval. But will it actually change anything? The five executive actions, which mostly affect the USPTO, will have limited impact. The seven legislative reforms, meanwhile, are likely to take a long time to reach the statute book.

As we reported last week, there are at present six competing bills in Congress, all of them seeking to tackle at least some of the problems Obama identified. These will have to be reconciled. Factor in the likely disputes over details once proper political debate starts, and the competing priorities in Congress, and it could be 2015 before any new law is effective.

However, that does not mean nothing is happening in US patent law. In the short term, change is more likely to come from the courts than the politicians.

It’s clear from the Federal Circuit’s divided bench in CLS Bank, and the sometimes despairing reaction to it, that the question of when and how software should be eligible to be patented is very much alive. As Erika Arner and Lauren Dreyer argue in our latest issue, the case “seems primed for Supreme Court review”. I’d be astonished if the Court does not take up CLS Bank, or a similar case addressing Section 101.

We will be hosting a webinar on the CLS Bank case on June 18 at 12 noon EDT. Speakers include Robert Fischer and Michael Sandonato of Fitzpatrick Cella Harper & Scinto and Renny Hwang of Google, which filed an amicus brief in CLS Bank. Renny will set out Google’s position on the issue and explain why the company decided to argue its case.

Registration for the hour-long webinar is free and participants will also be able to ask questions of the panel.

So much for software. Those in the biotech field also have plenty to think about, and we have another webinar on June 27 at noon EDT focussing on patent issues for that industry, including the recent Monsanto decision on patent exhaustion and the pending Myriad case on eligibility (which may be decided by the time of the webinar).

These cases have the potential to transform patent protection in the United States at least as much as the Obama proposals, and probably much more quickly. Whichever industry you work in, wherever you are based, whether patent owner or third party, be sure to take note.


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