{"id":1977,"date":"2013-10-01T13:53:19","date_gmt":"2013-10-01T13:53:19","guid":{"rendered":"http:\/\/ncjolt.org\/?p=1977"},"modified":"2020-06-04T20:54:00","modified_gmt":"2020-06-04T20:54:00","slug":"current-patent-reform-proposals-may-be-premature-and-threaten-an-independent-judiciary","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/current-patent-reform-proposals-may-be-premature-and-threaten-an-independent-judiciary\/","title":{"rendered":"Current Patent Reform Proposals May Be Premature and Threaten an Independent Judiciary"},"content":{"rendered":"

Tuesday, October 1, 2013, by Daniel Parisi
\nA tornado of patent reform proposals are currently being considered in Congress which pose risks of premature action and dangerous infringement on traditional judicial authority.\u00a0 Congress should take its time and not get swept away.\u00a0 In a keynote speech<\/a> on September 17, 2013, Honorable Federal Circuit Judge O\u2019Malley warned attendees of the Intellectual Property Owners Association annual meeting<\/a> that Congress is currently proposing patent reforms that would micromanage litigation and create detailed procedural rules in matters traditionally decided by judges.
\nPatent reform proposals are falling from the sky including Rep. Goodlatte\u2019s Patent Discussion Draft<\/a>, Sen. Cornyn\u2019s Patent Abuse Reduction Act<\/a>, and Reps. Jeffries and Farenthold\u2019s Patent Litigation and Innovation Act<\/a>.\u00a0 Venable LLP has created a chart<\/a> with detailed coverage.\u00a0 The patent activist group, the American Hotel and Lodging Association, whose members have been the target of infringement lawsuits, provides another excellent chart<\/a>.<\/p>\n

A tornado of patent reform proposals are currently being considered in Congress which pose risks of premature action and dangerous infringement on traditional judicial authority.<\/p><\/blockquote>\n

Reform may be premature<\/a>.\u00a0 These proposals are all in addition to the America Invents Act<\/a>, passed on September 16, 2011, which overhauled the U.S. patent system switching from a first-to-invent to a first-inventor-to-file system.\u00a0 Major provisions of this act took effect only recently on September 16, 2012, and March 16, 2013.\u00a0 The ink is barely dry and the new procedures such as post-grant review, inter partes review, and covered business method review have only been available for a short period.\u00a0 It is too early to count results.\u00a0 Yet the tornado swirls.
\nThe patent reform proposals come perilously close to infringing on an independent judiciary.\u00a0 The proposals single out patent litigation and create detailed procedural rules governing pleadings, discovery, bonds, sanctions, attorney\u2019s fees, joinder, and other similar matters.\u00a0 These matters are usually governed by the Federal Rules of Civil Procedure<\/a> and managed by judges based on the merits of individual cases.
\nProcedural rules are normally created by a rules committee<\/a> that carefully evaluates proposals and adopts rules under the Rules Enabling Act<\/a>.\u00a0 Congress delegated rulemaking authority to the Supreme Court to achieve the benefits of long-term rule stability, rules based on judicial experience, and decisions made free from the pressures of elections, lobbyists, and special interest groups.
\nJudge O\u2019Malley noted that it can be hard being the judiciary with the executive and legislative branches around.\u00a0 \u201cA senior senator \u2014 who shall remain nameless \u2014 appeared on CNN back in January, looked at the camera, and said:\u00a0 We have three branches of government.\u00a0 We have the executive; we have the House; and we have the Senate.\u00a0 (Laughter).\u201d\u00a0 This gaffe recounted by Judge O\u2019Malley<\/a> says a lot about the potential for overreach.\u00a0 Judge O\u2019Malley identifies the slippery slope. \u00a0If Congress inserts its heavy hand into the courtroom regarding procedural matters in patent litigation, what area of law is next?
\nIntellectual property owners and Congress are understandably concerned about abusive litigation practices and the cost of discovery and trials<\/a>.\u00a0 However, procedural matters often require judicial discretion in individual cases to reach proper and just results.\u00a0 The initial results of the America Invents Act are not even counted yet.\u00a0 Congress should take its time and make sure that its intervention and new procedural rules are truly needed.
\n <\/p>\n","protected":false},"excerpt":{"rendered":"

Tuesday, October 1, 2013, by Daniel Parisi A tornado of patent reform proposals are currently being considered in Congress which pose risks of premature action and dangerous infringement on traditional judicial authority.\u00a0 Congress should take its time and not get swept away.\u00a0 In a keynote speech on September 17, 2013, Honorable Federal Circuit Judge O\u2019Malley …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1977"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=1977"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1977\/revisions"}],"predecessor-version":[{"id":7573,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1977\/revisions\/7573"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=1977"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=1977"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=1977"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}