Congress So Dysfunctional, It Can't Even Fix The Errors It ADMITS It Made In Patent Reform
from the incredible dept
Okay, this one is incredible. As you may recall, back in September of 2011, the "America Invents Act" became law. This was a "patent reform" proposal that had been debated and changed and debated some more for about seven years before finally getting approved in a greatly watered down fashion. We criticized the bill for doing almost nothing to deal with the real problems of the patent system, but there were some incredible, fundamental, blatant mistakes in the final bill. You'd think that with seven years of debate and tweaking that such mistakes would have been whittled away. The first clue to some serious problems was in an analysis by Mark Lemley soon after the bill was approved in which some drafting errors were apparent just in looking at the "effective dates" of various parts of the bill.Over time, it became clear that Congress had left significant errors in. Recently some of the key people behind the bill admitted that there were errors in the bill, with Eli Lilly's General Counsel, Bob Armitage, stating: "There are a few minor errors in the bill and one major error in the bill." What's the "maajor error"? It's the part on "estoppel" in "post grant review." Basically, there's a provision in the bill which encourages people to seek "post grant review" of questionable patents in the first nine months after they've been approved. In talking about this, Congress was clear that it wanted to encourage more people to use this, and so it wanted to remove barriers. One of those was to make it clear that failing to raise issues during the post grant review shouldn't prevent those issues from being raised later. However, the actual language of the bill says that any issue that "could have been raised" can't be raised later.
As law professors Eric Goldman and Colleen Chien note, it's clear that Congress didn't mean to include this language. The committee report on the bill and direct quotes from both House and Senate sponsors of the bill (Lamar Smith and Patrick Leahy) admitted that this was a mistake:
To fix some of the errors in the AIA, Congress rushed through a "technical corrections" bill, intended to fix some of the problems with the bill. During all the fiscal cliff mess, with some back and forth between the House and Senate, they approved this bill which will be signed any moment, if it hasn't been already.By all accounts, in the AIA, Congress intended to remove the "could have been raised" language and provide a narrower estoppel for PGR proceedings. As the Congressional committee report explains, the PGR was designed to "remove current disincentives to current administrative processes." But something funny happened on the way to the Congressional floor, and the problematic "could have been raised" language was inadvertently inserted into the bill.
We're not the only ones to recognize the error. House Judiciary Chairman Lamar Smith referred to the AIA's PGR estoppel standard as "an inadvertent scrivener's error." Senate Judiciary Chairman Patrick Leahy, in advocating that the Senate adopt the technical corrections bill, said the PGR estoppel standard in AIA was "unintentional," and it was "regrettable" the technical corrections bill doesn't address the issue. Sen. Leahy expressed "hope we will soon address this issue so that the law accurately reflects Congress's intent." The PTO also thinks Congress made a mistake, saying "Clarity is needed to ensure that the [PGR] provision functions as Congress intended."
Just one problem. For a bill about technical fixes, it didn't actually address this one *admitted* major error in the original bill. Yeah, they left that one out.
Let's recap, because this is quite incredible:
- Congress spends seven years debating patent reform.
- It finally approves patent reform in late 2011, and despite seven years of debate, had a ton of clear errors in the drafting of the bill.
- The official sponsors of the bill flat out admit that there's a major error in a part of the bill that they did not intend to be in there.
- A year plus later, Congress finally introduces a bill to "fix problems" in the original bill.
- This "technical corrections" bill does not fix the one major problem that all admit was a flat out mistake in the original bill.
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Filed Under: america invents act, congress, errors, estoppel, lamar smith, patents, patrick leahy, post grant review
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Politics is rotten to the core and the whole system needs a big reboot.
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Govt. established monopolies should never be used for commercial purposes.
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Just easier to ignore the issue rather than pay for the patent.
Oh, and then there's the problem of nearly half of our Congress consisting of millionaires.
Not that this is an issue, but it sure does present on hell of a conflict of interest in regard to a government controlled monopoly.
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1) Congress would have absolutely no idea how to do a patent search
2) The current patent search facilities are highly unlikely to actually help you discover anything related to what you are looking for - regardless of how many patents apply
3) It's not their money - since it is taxpayer money, they would happily fork over billions of dollars to pay for something
4) I'm sure more than half of our Congressmen are millionaires - otherwise many recent bills would have failed to pass a majority vote
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2) But the aides can go down the road to get help.
3) The very reason why they'll search for the patent: it's a waste of money
4) 47% is the current tally. I just read that online under the caption "10 Things Wrong With Congress".
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Scary stuff, with those "megatrends" bearing down on America. :)
Also I don't believe there is anybody happy with the "failed congress" that is departing.
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Well by the look of things congress can't do anything and will continue to do nothing the next cycle.
Just ask NY.
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Follow the Money!
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What did you expect?
If I were a congressman I would INSIST on reading every page before casting a vote to pass legislation.
They are all totally 100% incompetent idiots who only care about two things money (theirs) and power (theirs). They don't give a damn about anything else. They are systematically bankrupting the nation and baring their asses at america, make that the world, while they manage to do whatever the hell they want with impunity!
But make no mistake, it will be you and me that foots the bill for their incompetence and brazen disregard for the people they are supposed to serve. They will laugh all the way to the bank.
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Re: What did you expect?
We are people and we are getting angrier and angrier.One day we are going to rise up and we are going to tear their World apart.
None of these Asshole Politicians know anything about History.They should of paid attention to that.Think of all the failed Empires that squeezed and squeezed until the people rose up and/or their stupid Empires Collapsed into ruin.
Fuck You Washington Politics ! We are not all Sheep !!!
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Re: Re: What did you expect?
I agree the day of an uprising is coming, but it will be far too late by then. America will just be another Greece or Egypt, or Syria probably some combination of all of the above.
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Are you smoking crack?
The most recent financial crisis was caused by a few greedy individuals that control banks and the risk assessment of their "products". These are multinational corporations being used to plunder the world. The fact that several governments were remiss in their duties of oversight can not be placed at the feet of one nation's populace.
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Congress can fix this
If only Congress could pass a bill that would recalculate how "Approval Ratings" are based (biased) and make it so it only applies to them, they would have the best approval rating ever!
But, knowing how they operate, it would more than likely end up just increasing the length of copyright (again), allow retroactive patent extensions (coming soon to a patent troll near you) and raise their own salaries (didn't see that coming... said no one ever).
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Inadvertently? I doubt that. Answer the question of who did it and that should eventually reveal why they did it. We've seen this before, people.
http://en.wikipedia.org/wiki/Mitch_Glazier#Work_for_hire
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Smart move here. We're having troubles with balancing the budget so let's increase the expenses. Despite all the retortic, the Repubs play it the same way too. It's only when they aren't in power that the deficit is an issue. To quote the Bush/Cheney stance, 'Deficits don't matter'. Which is what got us where we are today.
Were those in congress working in the private sector, you could count on the fingers of one hand who still had a job for lack of job performance.
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Congress...
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