Glaxo’s Garnier To Senate: Restrict The Patent Office
1 CommentBy Ed Silverman // January 23rd, 2008 // 8:00 am
In a recent letter, JP Garnier urges Pat Leahy and Arlen Specter of the US Senate Judiciary Committee not to pass a patent reform bill that would give the US Patent Office greater authority over final rules and search requirements. The Jan. 16 letter suggests these provisions may be found unconstitutional and that the federal government will be “exposed to enormous financial liability” when companies effected by a souped-up USPTO seek “just compensation for the loss of patent rights.”
You may recall that last October, a federal judge delayed new USPTO rules that were scheduled to go into effect. Citing a threat to its rights to inventions, Glaxo filed a lawsuit seeking to prevent the USPTO from moving forward. In making his case to the senators, Garnier emphasizes the ruling, but expresses frustration that a Senate Judiciary report on patent reform legislation failed to note this development. He goes on to say that giving the USPTO added “unconstitutionally vague” authority over final rules and search requirements “would almost certainly be challenged in court…”
The larger issue, of course, is that Glaxo claims the new USPTO rules are arbitrary and will prevent it from pursuing patent applications and obtaining patents on or more of its inventions, especially since the drugmaker has hundreds of various types of applications in the works. In essence, Glaxo fears the new rules will make it harder to make such filings, therefore threatening its investments. Besides PhRMA and BIO, various trade groups representing technology and agricultural companies have supported Glaxo in its fight with the USPTO.
Hat tip to the PLI Patent blog
elliottg
Dr. Garnier should either get better ghost writing lawyers or stick to something he knows something about. He’s absolutely insane to make this argument except insofar as he can bamboozle people. Let’s count some of the ways he is wrong.
1. A TRO is not a ruling in a case. It just suspends action until a final ruling.
2. The ruling is from a district judge. The chance of this not being appealed is so minimal as to not merit consideration.
3. The ruling’s substantive issue is whether the USPTO has the right to promulgate rules in the absence of explicit Congressional authorization. If Congress acts, then the case becomes moot.
4. Intellectual property rights as it is today is wholly a creature of the legislative branch (and subsequent implementation by the USPTO with court cases). The constitutional grant of authority to Congress is explicit and, pretty much, unrestricted. If Congress wanted to dismantle the patent system tomorrow, they could.
In short, Glaxo’s CEO is on crack if he thinks this is an argument against Congressoional action. Maybe he was trying to bamboozle them.
(Anyone else read Judge Cacheris’s opinion and sense some underlying hostility tot he patent office not associated with the merits of the case?)