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.

Earlier this week, I attended the Third Annual BNA/ABA Patent Litigation Conference (as a result of a wonderful invitation by Barry Grossman of Foley and Lardner–thanks Barry!), where the considerable controversies associated with current patent law were explored in great detail.   In particular, I listened with great interest to a speech by the Honorable Paul Michel, who is currently serving as the Chief Judge of the Court of Appeals for the Federal Circuit.   He highlighted ongoing unease with:

*  the congressional efforts to reform patent law, which have taken over three years and not been conducted in a transparent manner that reassures the interested constituencies that patent reform will ultimately address ongoing controversies in a sufficiently even-handed manner;

*  the increased activism of the Supreme Court in the area of patent law (a trend which I view with less skepticism than Chief Judge Michel);

*  the ongoing ferment over the U.S. Patent and Trademark Office–over both its policy-making role and the under-staffing that will continue to impact its crucially important examination role; and

*  the coming crisis in staffing at the Federal Circuit, which may experience at least eight retirements in the next four to eight years.

Chief Judge Michel’s remarks summarize some of the problems roiling the patent community at present, but a whole host of additional problems are also asserting themselves.