Joff Wild

Michael Kirk, who retired as the executive director of the AIPLA at the end of August, has claimed that high-tech companies have contributed to the creation of a significantly more hostile attitude to patent rights in the US. Speaking to IAM in an exclusive interview to mark his induction into the IP Hall of Fame, Kirk stated that the press and PR campaigns employed by companies - including Microsoft, Hewlett Packard, Cisco and Apple - that are members of the Coalition for Patent Fairness had helped create a situation in which patents are under attack in the country in a way that has not been seen before.

“I do not think that wanting to do something about issues such as damages and permanent injunctions is the problem,” Kirk said. “It’s the way they have sought to make their point. When you say that the patent system is broken and needs fixing or that it puts innovation at risk, a lot of people are going to believe you. I can even see their influence in the Supreme Court’s decision in the KSR case, written by Justice Kennedy.”

Kirk, who is now doing part-time consultancy work for The Coalition for 21st Century Patent Reform, also said that the high-tech companies were seeking to portray patent reform as a battle involving just themselves and the life sciences industries. “They want to make out that this is a struggle between companies that provide the technology products everyone enjoys and the big, bad pharma multinationals. But this is not the case. It is not pills versus chips, it is the high-tech industry and some in financial services against pretty much everyone else.”

Although there will be no movement on patent reform this side of the presidential and congressional elections, Kirk said that he expected a new bid to get the law passed during the next Congress. The Coalition for 21st Century Patent Reform is prepared to sit down with its opponents to work out a solution to current impasses, but Kirk does not believe that high-tech is ready to do this. “I think they are still counting on the Democrats winning big in November, so that the bill in its current form will be veto-proof in Congress,” he claimed. But, he continued, that could turn out to be a miscalculation. “Even if the Democrats get to 60 seats in the Senate, I would not count on the legislation being passed,” Kirk said. “If you are a senator from Missouri and Monsanto [which has its HQ in the state] is telling you that the legislation could put people there out of work, you are not going to vote for it whether you are a Democrat or not. Other senators do not want to choose at all, as they are facing pressure from both sides. When it comes down to it, the politicians represent constituencies, not political parties.”

While I have been in the US, I have heard that Senator Patrick Leahy, the bill’s main supporter in the Senate, is reluctant to make another move until all sides broadly agree on what the legislation should say. Kirk, however, feels that this is not the case. “The Act will be reintroduced, but the real issue is what will then happen. It could be that should the same problems appear again, Leahy will decide he wants to forget patent reform and do something more productive instead.”