On June 15, 2010, Analysis Group convened a panel of diverse experts to address a range of issues regarding patent reform. The event, which drew over 100 attendees from law, business, and policy and political circles, was co-sponsored by Analysis Group, Georgetown University’s Center for Business and Public Policy, and McKool Smith and was held at the Newseum in Washington, D.C.
“Patent Reform 2010: What Shape Will It Finally Take?” was presented in three panels, each addressing key aspects of proposed legislation, prospects for reform, and potential implications of a reform bill passing this year. Each panel was moderated by recently retired Federal Circuit Chief Judge Paul Michel, and the event and speakers were introduced by Professor John Mayo of Georgetown, an Analysis Group academic affiliate.
Panel One: “What Is the (Perceived) Need for Patent Reform?”
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Panel One (left to right): Cheryl Miller, Pat Choate, Judge Michel, Doug Cawley, Philip Johnson
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Cheryl Miller, Deputy Staff Director for Technology and Innovation, Committee on Small Business and Entrepreneurship, U.S. Senate, presented a defense of provisions to ensure that the impact of patent reform on small business is analyzed in advance of passage; economist and author Pat Choate discussed his concerns that the proposed legislation (the “Manager’s Amendment” to S. 515) does not address operational problems of the USPTO, thereby not helping innovators and inventors; Doug Cawley, a principal at McKool Smith, provided background on various proposed legislation and the position of large IT firms relative to reform; and Philip Johnson, Chief Intellectual Property Counsel for Johnson & Johnson, discussed the need for changes to the current “first-inventor-to-file” system to ensure that pharmaceutical companies can reduce the risk of patent challenges when investing in new technologies.
Panel Two: “What Is the Status of and What Are the Prospects for Patent Reform?”
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Panel Two (left to right): Dana Rohrabacher, Joe Matal, Judge Michel, John Dudas, Hans Sauer
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Representative Dana Rohrabacher (R-CA), firmly opposed patent reform as unnecessary this year and stated support for fewer concessions on protection of U.S. intellectual property; Joe Matal, Republican General Counsel of the Senate Judiciary Committee, defended the proposed legislation, noting the challenge that incorporating “holds” from both sides of the debate presented to passage; Jon Dudas, partner at Foley & Lardner LLP, and former director of the USPTO, discussed the lack of funding and a perennial backlog at the USPTO, and the potential for regional offices to help mitigate these problems; and Hans Sauer, Deputy General Counsel for Intellectual Property for BIO, outlined the issues that biopharmaceutical companies have focused on in terms of ensuring adequate deterrence of infringement in the various bills under consideration.
Panel Three: “What Will Be the Implications of Patent Reform?”
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| Panel Three (left to right): Bernard Cassidy, Judge Michel, Brian Riopelle, John Jarosz |
Bernard Cassidy, Executive Vice President and General Counsel of Tessera Technologies, noted that the information technology industry is not a monolith and cautioned against what he sees as the continued erosion of enforceable intellectual property rights; Brian Riopelle, partner at McGuireWoods LLP, expressed concerns over the potential for legislation to increase the length of an infringement trial by requiring sequencing of determination of infringement validity before determining damages; and John Jarosz, managing principal at Analysis Group, countered the notion that patent case awards were excessive as the result of “runaway juries,” noting that the “median award in patent cases of less than $4 million has not changed very much over time.” ■
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| Moderator Judge Paul Michel |
Panelist Philip Johnson |
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| Panelist Pat Choate |
Professor John Mayo, panelist John Jarosz, and an attendee (left to right) |
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| Professor John Mayo |
Panelist Bernard Cassidy (right) and an attendee. |
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| Panelists Dana Rohrabacher and Doug Cawley (center and right) |
Panelist Dana Rohrabacher |
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| Panelist John Jarosz |
Panelist Joe Matal |
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| Panelist Jon Dudas |
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