Guest Post: David Boundy – Patent Reform That Hurts Small Inventors and Small Businesses

The following is a guest post of David Boundy who is a Vice President and Assistant General Counsel for Intellectual Property at Cantor Fitzgerald.  The views he expresses here are not those of Cantor Fitzgerald or its clients.  His post follows:

Yesterday, a major effort was launched to ram patent legislation through the U.S. Senate without crucial changes needed by small businesses. The article at bottom describes the “public relations campaign” organized by the Senate Judiciary Committee and its chairman, Sen. Patrick Leahy (D-VT), with the help of America’s largest corporations. Small companies and individual inventors are not mentioned in the article, because they will be badly hurt. A few phone calls from your members this week could make a huge difference.

For years, small businesses, start-ups, entrepreneurs and independent inventors have asked Sen.. Leahy to make changes to his bill to accommodate their concerns. Leahy’s bill essentially repeals the one year “grace period” for small companies (called “first to file” in the bill), and adds a “post-grant review” that would be devastating to those of us with limited resources. We have received occasional lip service, but that is all. The weak grace period and post grant review remain in the bill.

Now the proponents know they have a very short window of opportunity. If the bill does not go to the Senate floor soon, time will run out. Leahy will soon have the task of shepherding a Supreme Court nomination through the Senate, which will take weeks, maybe months. Because of Congressional elections in November, members of Congress will go home to campaign in early October. If the patent bill does not pass soon, it will not pass at all.

And that is our leverage. To bring the bill to the Senate floor, Leahy needs “unanimous consent” of all Senators. If one Senator objects, it will take too long to overcome that objection.

Therefore we need to act now. Every American innovator needs to call his or her U.S. Senators and ask them to object to consideration of this bill until changes are made to accommodate small patent holders – no First to File, no Post Grant Review, no changes that tilt the balance of power toward large infringers. All it takes is for one Senator to object — then the bill will either have to be changed or die.

We urge you to take five minutes to call both your Senators. It is VERY easy. Here is how.

1) Call the U.S. Capitol at 202-224-3121 and ask for your Senator’s office; (you can identify your Senators at http://www.senate.gov/general/contact_information/senators_cfm.cfm)

2) When you reach your Senator’s office, ask to speak to “the staffer who handles patent reform.”

3) When you are put through to that person, give them your name and address, and urge that their boss object to “unanimous consent” on the patent bill (S. 515) because it does not make the changes that small businesses have requested – specifically, removing the first to file and post grant review provisions. Explain that these provisions will allow infringers to take intellectual property without practical recourse by the small patent holder. Ask if the Senator will agree to do that – to object until the bill is corrected for small businesses. Get the staffer’s name, and if possible, their email address. Share your email address if you would like to do so, and ask the staffer to send you any future information regarding the patent bill’s status.

4) If you reach a voice mail box, leave the message above and ask for a return call to discuss the issue.

5) Repeat the process with your other Senator. Both Senators are equally important – either may say the magic words, “I object” to Senator Leahy’s unanimous consent request.

Doing this via telephone is the only effective way at this point. Email may not find its target for a long time. Congressional offices get hundreds of emails a day. Sorting them out and getting them to the right staffer can take a week or more. Making a phone call is the one way you can know that your message has been received. We encourage you to take the time today to make a call to each of your Senators. It is actually quite easy, and most Senate offices are extremely professional and responsive.

Also, if you would like to share the results of your call back with us, please do so that we can help keep track of the responses. David Boundy, PatentProcedure@gmail.com

Thank you for taking time to act on this crucial matter. Thank you for working with us to protect small business innovation today, before it’s too late.

 I have also attached a one-pager that gives the substantive analysis that some of your members might need.

Boundy also references an article that appeared in BNA (subscription service) yesterday that referenced a public relations campaign by the Senate Judiciary Committee in an attempt to claim broad support for the pending bill.

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5 Responses to “Guest Post: David Boundy – Patent Reform That Hurts Small Inventors and Small Businesses”

  1. Dale B. Halling Says:

    David,
    I absolutely agree with you. What we need is real patent reform, not just a bill that does no further damage. Here are my suggestions for real patent reform that would not only help small inventors but the US economy.
    1) Repeal Publication: This would restore the social contract
    2) Repeal KSR: A subject standard of patentability just increases costs and uncertainty associated with the patent process. KSR makes bureaucrats the ultimate arbiter of what is patentable instead of logic.
    3) Repay PTO: Congress should repay the over $1B it stole from inventors with interest.
    4) Regional Offices for PTO: This would ensure steady funding of the PTO and increase examiner retention
    5) Repeal eBay: This decision is logical absurdity. If a patent gives you the right to exclude, then if you win a patent infringement case you must be able to enforce your only right – the right to exclude
    6) Eliminate “Combination of Known Elements”: The fact that the Supreme Court does not understand that every invention in the history of the world is a combination of known elements is pinnacle of ignorance. Have they ever heard of “conservation of matter and energy”?
    7) Patent Reciprocity: If you drive your car across the border into Canada you do not lose title to your car. If you take your manuscript across the border into Canada you do not lose the copyright to your manuscript. But, if you take your invention across the border into Canada, you lose your patent protection and anyone can steal the invention – not the physical embodiment, but the underlying invention.
    Patent reciprocity would automatically provide patent rights in a foreign country when you obtained a patent in the US and vice versa. This idea was first proposed by the US in the mid 1800s according to B. Zorina Kahn’s book “The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920“. Unfortunately, the idea died and since then patent rights have been part of the convoluted process of trade negotiations.
    Patent reciprocity would significantly increase the value of patents and increase the value of research and development. As a result, it would spur investment in innovation. Reciprocity would increase the valuation of technology start-up companies in all countries that participated. It would also increase per capita income.

  2. JODY HENSON Says:

    This blog was awesome. This article was very useful.Thank you for this information.

  3. Report: Patent Reform Passage Near in Senate « INVENTIVE STEP Says:

    [...] people that elect the leaders.  Although I do not object to the merits as strongly as Mr. Boundy, I concur with his call to voice your displeasure with this situation to your congressional represent….  This piece of reform legislation is too comprehensive for passage based on back room [...]

  4. Douglass Rilley Says:

    Wow. Great post. I thank you for all of your hard work.

  5. Guest Post: David Boundy – Defeat the America Invents Act « INVENTIVE STEP Says:

    [...] following is a guest post of David Boundy who is a Vice President and Assistant General Counsel for Intellectual Property at Cantor [...]

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