Congress So Dysfunctional, It Can't Even Fix The Errors It ADMITS It Made In Patent Reform

from the incredible dept

Thu, Jan 3rd 2013 8:26am — Mike Masnick

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:

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."

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.

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.

And people wonder why Congress' approval rating is so low.

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Filed Under: america invents act, congress, errors, estoppel, lamar smith, patents, patrick leahy, post grant review

29 Comments

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Ninja (profile), 3 Jan 2013 @ 7:54am

Too much corporate influence. I'd let major errors pass if there were a few hundred lobbyists screaming in my ears (or rather filling my pockets).
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Aria Company (profile), 3 Jan 2013 @ 8:13am

Probably the result of Congress doing a patent search and discovering a company owns a patent on using electronic devices to fix broken patents.

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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Anonymous Coward, 3 Jan 2013 @ 8:40am

Congress probably couldn't agree on what was the right thing to do, so nothing got done.... again.
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Anonymous Coward, 3 Jan 2013 @ 8:41am

You think that is bad you should read the predictions of the The US Intelligence Community�s New Year�s Wish: Megatrends, Game-Changers, Black Swans, Tectonic Shifts, and a World Not That Different From 2012

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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VMax, 3 Jan 2013 @ 8:49am

Re:
The "failed congress" is not departing. They're just replacing the bits that weren't properly paid for.
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Dave Nelson, 3 Jan 2013 @ 8:51am

Follow the Money!
Who benefits from these "errors" not being fixed? The patent trolls, and any corporation that has managed to get a flakey patent through the PTO. Money talks, good intentions walk. 'Nuff said.
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Zakida Paul (profile), 3 Jan 2013 @ 8:53am

Re:
It's the same here in the UK. The banks and corporations are the ones really running the country. How is a politician supposed to be impartial when these people are donating massively to their parties or when they have comfortable board jobs lined up for after they finish with politics?

Politics is rotten to the core and the whole system needs a big reboot.
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Anonymous Coward, 3 Jan 2013 @ 8:54am

Re: Re:
truth-out.org/opinion/item/13674-the-final-failure-of-a-failed-congress

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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The Real Michael, 3 Jan 2013 @ 8:55am

Re:
Yeah, I mean they did such a wonderful job handling the budget.
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Anonymous Coward, 3 Jan 2013 @ 9:02am

Re: Re:
It needs to start with the media. Granting govt. established monopoly power over broadcasting spectra and cableco infrastructure (over information distribution channels) to a bunch of self interested commercial interests is a way to promote an ignorant group of citizens brainwashed with nothing but overpriced propaganda and commercials.

Govt. established monopolies should never be used for commercial purposes.
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Anonymous Coward, 3 Jan 2013 @ 9:04am

Since con is the opposite of pro then congress is the opposite of progress.
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Anonymous Coward, 3 Jan 2013 @ 9:09am

Re:
gets me everytime
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Mr. Applegate, 3 Jan 2013 @ 9:24am

What did you expect?
After all they freely admit "They don't have time to read the bills they vote on". Why would you expect them to care if there are errors in a bill they passed?

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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Michael, 3 Jan 2013 @ 9:36am

Re:
Simply ridiculous.

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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Anonymous Coward, 3 Jan 2013 @ 9:40am

what's so surprising about this? considering it was the USA that caused the world financial crisis, look at the squabbling and problems they have just had again in trying to prevent falling over the 'fiscal cliff'. those responsible for this last lot of screw ups didn't even think about sending the world back into another recession if they couldn't get agreement. talk about a bunch of blind, selfish idiots leading a bunch of blind, selfish idiots!
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DogBreath, 3 Jan 2013 @ 9:48am

Congress can fix this
And people wonder why Congress' approval rating is so low.

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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A Non-Mouse, 3 Jan 2013 @ 9:52am

"...the problematic "could have been raised" language was inadvertently inserted into the bill."

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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gorehound (profile), 3 Jan 2013 @ 9:56am

Re: What did you expect?
Their laughter will be shut up one day to their utter dismay !
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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Rick Smith (profile), 3 Jan 2013 @ 10:18am

Re:
I was thinking basically the same thing, what makes anyone think that these were 'errors'. The so called major one seems like something that would be intentionally put in. I don't believe for one moment that they did not know what it said and what it did. It was put there and probably planned as an 'error' when someone eventually discovered it, so that they could claim ignorance.
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Mr. Applegate, 3 Jan 2013 @ 10:28am

Re: Re: What did you expect?
One needs look no further than the last election to see that indeed the majority are sheep. They keep voting the same dumb asses back into office.

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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Anonymous Coward, 3 Jan 2013 @ 10:30am

Re:
The case here is not they can't agree is that they can't act even when they all agree.
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Anonymous Coward, 3 Jan 2013 @ 10:40am

I guess we should be glad we are not getting all the government we are paying for. After all, Obama just signed for them to receive a cost of living raise, along with all government employees.

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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Anonymous Coward, 3 Jan 2013 @ 11:15am

Re: Re: What did you expect?
Ok, lets hear that one more time with Baaaaaahhhhhhhh lls...
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Wolfy, 3 Jan 2013 @ 11:20am

Can we put a bounty on those congress-critters, yet?
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Thomas (profile), 3 Jan 2013 @ 4:45pm

Congress...
is just plain corrupt. "Patent reform" won't work because too many companies own too many members of Congress. There's no way congress will offend the people that give them money to buy votes.
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Aria Company (profile), 3 Jan 2013 @ 6:07pm

Re: Re:
1) Aides do the work. ;)

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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Anonymous Coward, 4 Jan 2013 @ 5:01am

Re: Re:
They (mostly all) agreed to and did wipe their collective ass with the bill of rights.
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Anonymous Coward, 4 Jan 2013 @ 5:03am

Re: Re: Re: What did you expect?
Yeah, gerrymandering had nothing to do with it.
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Anonymous Coward, 4 Jan 2013 @ 5:13am

Re:
"considering it was the USA that caused the world financial crisis"

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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