Joff Wild

It has looked dead for a month or so. And now it is. The Patent Reform Act has been officially withdrawn from the schedule of the US Senate and with that decision goes just about any chance it had of being enacted in 2008. Once it became clear that no deal was going to be reached over damages apportionment, the writing was on the wall for the proposed legislation When John Whelan, on secondment from the USPTO, packed up his things and left Senator Patrick Leahy’s office and Leahy’s chief counsel started to work on other things, the game was up.

But, when you think about all the words expended – not to mention the money spent on lobbyists – what is surprising is that absolutely nothing has come out of the last year and bit's worth of debates. Having been led to believe that the US patent system was fundamentally flawed and needed fixing if it was going to be fit for purpose in the 21st century, we have now found out that the only game in town was actually an argument about how damages should be calculated in patent infringement cases and that nothing else on the table was worth taking forward.

Apart from no changes to the damages regime, here are a couple of the other things we are not going to be seeing in the US as a result of the Act’s failure to get through the legislative process:

• No first to file. The US will remain the only country in the world (I think) where first to invent holds sway.

• No system of post grant oppositions at the USPTO – your options will remain re-examination or litigation if you want to get a patent invalidated.

It is surely extraordinary that, given the chance to make changes to the system, the greater US patent community could not find any kind of consensus over what it might want. Basically the last 14 months – and all the divisions they have caused and all the questioning of the patent system they have encouraged – might as well not have happened. In effect, all they have done is expose fault lines in the US patent-owning community that, although always present, had never been so visible in public before. It is difficult to see how relationships can be repaired given some of the bitter exchanges that have taken place and the accusations that have been made. In fact, can we really talk about a single patent owning community in the US these days? Probably not.

Given that new proposals for legislation are unlikely to surface before the middle of 2009 at the earliest - and stand almost no chance of being enacted before 2010, if at all - should reform happen now it is much more likely to be piecemeal through the courts, through regulatory authorities such as the FTC and through the USPTO, none of which the US patent communities have much control over (in the case of the latter, much to the chagrin of so many, of course). Basically, US patent owners had their chance to help shape legislation that so many of them claimed was necessary. And they blew it. As a result, they could end up discovering that a lot of what happens over the next few months and years is not much to their liking, whatever sector they are involved in. I can’t help thinking that you reap what you sow and that in the not too distant future we may be hearing an awful lot about the law of unintended consequences.