David Boundy is reporting on Patent Docs that House Republican leaders have reached an agreement to remove the provisions of H.R. 1249 that would prohibit Congress from stealing PTO funds. If this is true, the bill must be defeated.
As noted previously, the America Invents Act has numerous problems such as prior user rights and the near removal of the grace period.
The best part of the bill, the one that IP professionals have been fighting for for over a decade was the end of fee diversion, Congress’ continued theft of PTO user funds. The PTO is completely funded by user fees; it does not operate with tax money. Those fees should be set at a level that permits the PTO to conduct thorough and expeditious examination of all applications that are filed, as well as all reexamination and similar proceedings. The PTO is also in serious need of replacing its ancient IT infrastructure. Because patent examination takes more than one year, the PTO also needs the ability to budget for more than one year at a time. In an era where Congress cannot even pass a budget for a single fiscal year, the PTO cannot operate in this manner. It requires fee-setting and retaining autonomy. Congress’ near $1 billion theft from the PTO over the years is a lot of what got us into the current mess at the PTO. Simply permitting the PTO to be adequately funded, apart from other reforms, would go a long ways towards fixing any problems with the patent system.
Section 18 of the bill is a special transition program for challenging business method patents. The section defines “business method patents” as
a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.
OK, so what’s a “technological invention”? The bill does not define that term, but instead leaves it to the PTO to “issue regulations for determining whether a patent is a technological invention.” The Federal Circuit earlier ruled that the PTO does not have general substantive rule-making authority. Does this section of the bill grant the PTO such authority, or would such rules be merely procedural in nature?
More troubling, however, is the question of whether the patent law going to turn into the tax code where each industry or lobby gets its own provisions and special procedures and defenses.
The word is that the bill could come to the floor of the House for a vote as soon as Wednesday. It’s getting to be crunch time for patent reform.