National Law Journa
A dozen consumer advocacy and public interest groups have teamed up on an amicus brief supporting the new U.S. Patent & Trademark Office rules put on hold by a federal court’s injunction.
The groups say “the public interest overwhelmingly supports” the patent office final rules published on August 21.
“They will help the USPTO curtail abusive behavior by exploitative patent applicants and improve patent quality,” stated the Dec. 20 brief.
The groups behind the amicus are: The Public Patent Foundation, Computer & Communications Industry Association, AARP, Consumer Federation of America, Essential Action, Foundation for Taxpayer and Consumer Rights, Initiative for Medicines, Access & Knowledge, Knowledge Ecology International, Prescription Access Litigation, Public Knowledge, Research on Innovation, and Software Freedom Law Center.
“The over-patenting that results from low patent quality leads to thickets of patents that choke first inventors with countless small improvements claimed by others,” stated the amicus brief. “In what is akin to grade-inflation, by granting too many people too many patents, those inventors who legitimately do derive wonderful new technology get less credit than they deserve because of all the other patents that are issued in the related field.”
The new patent rules would limit patent claims, which are descriptions of the invention, and cut the number of times applicants can file for patent continuations.
Inventor Triantafyllos Tafas and Smithkline Beecham Corp. filed a joint suit on August 22, which claims that the new rules are unconstitutional because the PTO didn’t consider their impact on the “promotion of science and the useful arts.” Judge James C. Cacheris granted a temporary injunction on Oct. 31. Tafas v. Dudas, No. 07-00846, (E.D. Va.)
The groups involved in the amicus brief, particularly those connected to the software industry, are hoping to accomplish through patent rulemaking what they weren’t able to accomplish in Congress over many years, said James E. Nealon, a partner in the Stamford, Conn. office of New York’s Kelley Drye & Warren who represents Tafas.
“The battle that should be fought in the legislative branch is now framed to be decided in the judicial branch,” Nealon said.
