Patent Office Professional Association comes out against Patent Reform Act of 2007September 2, 2007

Support for the Patent Reform Act of 2007 (S. 1145, H.R. 1908) continues to erode. Now, as reported on the Patent Prospector, POPA, the Patent Office Professional Association, has penned an open letter against the Act. The letter, entitled "The Patent Reform Act Will Hurt, Not Help, the U.S. Patent System," is interesting for several reasons.

First, POPA comes out against so-called "Applicant Quality Submissions," or AQSs, which would become expressly permitted to be required of patent applicants if the Act is passed. These are very similar to the Examination Support Documents (ESDs) that will soon be required for all applications having either more than 25 total claims or 5 independent claims as a result of the recent rules promulgated by the USPTO. According to POPA:

37 C.F.R. § 1.56 already places a "duty of candor" on each individual patent applicant "which includes a duty to disclose to the Office all information known to that individual to be material to patentability…" The penalty for failure could be invalidation of the patent on the basis of inequitable conduct before the Office.

There is no reason to believe that the Applicant Quality Submission will put better information in front of the examiner during prosecution than is already provided for by 37 C.F.R. § 1.56. Nor is there any reason to believe that the USPTO will provide any more time to examiners to consider this additional information.

Thus, as POPA notes, the problem is not that there is insufficient information exchanged between examiners and applicants, but rather that examiners don't have enough time to adequately examine applications.

More discussion after the jump.

POPA also asserts that the value of AQSs would be severely undermined if the standard for inequitable conduct is also changed, as is currently proposed in the Act. The reasoning is that if it is more difficult to prove inequitable conduct, there is reduced motivation for applicants to ensure the "quality" of the AQS.

POPA also opposed enhanced rulemaking authority for the USPTO and elimination of the best mode requirement of § 112. Particularly, POPA endorses an end to fee diversion (allowing the USPTO to keep all collected fees), but is opposed to giving the USPTO unfettered discretion to set fees. Instead, the USPTO should promulgate fee changes via the rulemaking process, as is currently done. Also, POPA describes the best mode requirement as:

the very quid pro quo of the patent system. The U.S. Patent System is based on disclosure of inventions to the American people. In exchange, the American people grant an inventor the exclusive rights to his/her invention for a limited time. To eliminate the best mode requirement from the patent law would permit applicants to gain a limited monopoly on their invention and yet not put the full disclosure of the invention into the public domain. Eliminating the best mode requirement would significantly diminish the very worth of the patent system, i.e., to disclose information to the American public.

Between the AFL-CIO, IEEE-USA, House Republican leaders, and now POPA coming out in opposition to patent reform, it's been a rough week for supporters of the Patent Reform Act of 2007.

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