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» The state of play in patent reform | Open Source | ZDNet.com

October 13th, 2007

The state of play in patent reform

Posted by Dana Blankenhorn @ 8:51 am Categories: General, Linux, Legal, Patents, Linux Desktop OS , Linux Server OS, Government, politics Tags: Bill, Patent, Industry, Dana Blankenhorn


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Sen. Dianne Feinstein, from NNDB This week's patent suit against Linux should result in more attention to the issue of patent reform, so what are the prospects?

Not bad. If my two beats can find a compromise.

The House passed H.R 1908 last month, 220-175, and the Senate Judiciary Committee approved an identical bill, S. 1145, in July. On the surface the changes desired by the White House for the President's signature appear minor.  Many inventors don't like it, but their opposition can be overcome.

Here's the rub. The biotech industry doesn't like the bill. The reason is that while drugs come to market with a single, powerful patent behind them, technology products can be hit by patent trolls from several sides.

Thus the risks of the two industries before the patent bar are different. While a drug-maker wants absolute protection for his patent, once it's granted, the technology company wants to be avoid being blind-sided by 100 patent holders once products prove themselves in the market.

Because this is an issue between industries you may have trouble telling your friends from your enemies without a scorecard. The bill's sponsors cast a wide ideological stance from Howard Berman, who has been fighting the copyright wars on behalf of the music and movie businesses, to sometime composer Orrin Hatch and (yes) Larry Craig.

Opponents are also an interesting lot. They include Rep. Dana Rohrbacher, who linked the bill to Chinese slave labor in a September 4 speech on the House floor. 

These same people who are building the factories in China, the same people who are giving technology to China, the same people now who want to take the ideas of American inventors and take them to China and elsewhere without having to pay royalties, these are the people behind 1908.

The bill passed the House despite Rohrbacher's fulsome rhetoric, but there is also significant Senate opposition. This is led by Republican Jon Kyl , according to Congressional Quarterly.

Sen. Dianne Feinstein of California (above) may prove pivotal. In committee she expressed concerns about provisions in the bill to expand the ability to challenge patents after they're granted, and to limit damages based on a patented invention's contribution to a final product. These are important provisions for the tech industry.

It will be up to reform supporters like the Coalition for Patent Fairness to turn Feinstein around, but they need to act soon, before Presidential politics makes the legislative process grind to a halt.

Or before the trolls are able to surround open source with so many suits its innovators are all driven out of the country.