A few weeks ago, I was asked to give an update on patent reform to a group of Wall Street investors. My first reaction was that it would be a relatively short presentation because, despite the flurry of activity in Washington, progress in this area has been slow. Indeed on the legislative front, patent reform came to a screeching halt when Senator Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, abruptly and unexpectedly pulled patent reform off the agenda for this session.
But I realized, that even with a group of non-patent, non-legal folks, there is still much to discuss. After all, whereas in-house counsel are focused on judicial, regulatory and legislative results that can make a direct impact on reducing the amount and severity of non-practicing entity (NPE) litigation, investors have a different perspective. They are trying to understand trends and shifts in public policy that might affect the direction of markets, sectors and individual companies. For the investors, I framed the discussion by first looking at the efforts underway in the three branches of the federal government, and then pointing out a marked shift by reformers this round. While the last patent reform effort included legislative changes to substantive patent law, today most reform efforts stress improving transparency in the patent market, rationalizing the costs of litigation and strengthening the quality of patents.