So, to take up the question I asked yesterday, what does “measured urgency” look like? I would offer a few suggestions. First, an independent commission needs to undertake legislative revision of the Patent Act. The Patent Act of 1952 was an incredibly well-written, concise act. Current legislation has attempted to graft new procedures onto the Patent Act, which would have the consequence of creating a deeply incoherent act. The new President should appoint a commission of fairly neutral persons to sit down and decide what will become the Patent Act of 2009, an act that will serve as the framework for the next 50 years of patent law. Such an act should take into account the significant changes that have impacted the patent regime in the 21st century: the increase in agencies regulating the Patent Act, such as the ITC and the FDA; the need to change the role of the USPTO; and the increasing harmonization of patent law in the international environment. The commission would also increase the legitimacy of the process. Current patent reform is simply not working. Previous patent reform has often been seen as another cynical attempt by powerful chairpersons to rewrite patent law on behalf of their most powerful donors. These deeply cynical efforts have been accompanied by a failure to hold transparent and representative hearings. A commission would have the benefit of having the ability to channel interest group action in a positive way through open hearings and submitted comments. Such a commission would also have the ability to stay above what has proven to be a rugby-like scrum on the part of lobbyists to get the narrow best interest for their clients. I am all for an active and healthy self-interest on the part of the interest groups, but there must be a productive way to channel those interests in a way that serves patent law better.
Second, the President needs to broaden who serves on the Federal Circuit. Right now, the Federal Circuit only has one judge with substantive patent litigation experience and no judge with significant district court experience. A wide variety of patent experiences must be represented on the Circuit in order for a diversity of perspectives to be brought to the table in interpretative decision-making.
Third (a bit of the corollary to the first), any substantive revision of the patent law must be accompanied by a substantive rethinking of the role of the USPTO. The USPTO was envisioned for many years as a passive administrative actor, and its role must be re-defined for the 2lst century. In that process, a key question presents itself: is a new type of patent agency needed? Should we have a patent agency that combines all the fragmented administrative roles (so, for instance, should those ALJs located in the ITC who decide patent and trademark cases be moved to the USPTO)? Should the USPTO begin to negotiate patent treaties (instead of the USTR)? Might it be time to think of an Innovation Agency? Of course, such an agency might face the same issues that confront Homeland Security, but such an option needs to be on the table given the significant regulatory responsibilities at the heart of the patent regime.
I end with one thought: we (and I mean you, Mr. New President) have got to think of these issues as if one were scanning a wide landscape, looking at all the tasks of an innovation regime, instead of focusing on one tree or one flower (as we are doing now). Such an approach would encourage urgency, but also temper it with the measured calm always needed in a storm.