Transcript Features Lead Author of Agency Report, Others
WASHINGTON, D.C. - A major report by the Federal Trade Commission containing ten recommendations for patent law reform was the focus of a recent Progress & Freedom Foundation Congressional Seminar. Experts in attendance, including the report’s lead author, agreed on the importance of updating the law, but some questioned some of the FTC proposals. In order to aid Congressional deliberation on this and related legislative proposals, the Foundation is releasing, “Balancing Competition and Patent Law,” a transcript of the exchange.
Santi, deputy general counsel for policy studies at the FTC; Michael Kirk, executive director of the American Intellectual Property Law Association; Stephen A. Merrill, executive director of the National Academies’ Board of Science, Technology and Economic Policy; and the Honorable Gerald J. Mossinghoff, senior counsel at Oblon, Spivak, McClelland, Maier & Neustadt and former Commissioner of Patents and Trademarks. William F. Adkinson, Jr., senior policy counsel at the Foundation, moderated.
The FTC report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, advocates improvements in policies, procedures and funding at the Patent and Trademark Office, as well as significant legislative changes. It addresses the importance of reform in high-tech industries, including medical, biotech, pharmaceuticals, Internet, software and computers.
Panelists agreed increased funding is needed to improve the functioning of the Patent and Trademark Office. Mossinghoff and Kirk emphasized the need to pass H.R. 1561, which would increase the fees for patent applicants and deny appropriators the opportunity to apply the revenue to other budget items. The panelists also agreed on the benefits of instituting a post- grant administrative review proceeding, in which parties can challenge patent grants without the delay and expense of traditional litigation. Mossinghoff and Kirk disagreed with the FTC's recommendation that challengers no longer be required to show a patent invalid with "clear and convincing evidence." Sparks also flew over issues such as the burden the applicant should meet in obtaining a patent and the relevance of economic theory in patent decision-making. The Progress & Freedom Foundation is a market-oriented think tank that studies the impact of the digital revolution and its implications for public policy. It is a 501(c)(3) nonprofit organization.