I’ve told you before why any attempt to deal with patent trolls has to include an expansion of the Covered Business Method (CBM) reviewA covered business method review is an adversarial procedure created by the AIA for challenging patents, similar to an IPR. Like an IPR, the parties argue before an Administrative Patent Judge, not a patent examiner and the challenger must show a reasonable likelihood of successfully invalidating one claim before the PTAB will agree to grant a petition for review. Unlike an IPR, a CBM can program. (Here, here and here.) Short version: This expansion would allow the USPTOUnited States Patent and Trademark Office. See also PTO. to review more business method patents that are being asserted through litigation or threats of litigation. It’s cheaper and faster than having to go through court. (There are bills proposed by Senator Schumer and Reps. Issa and Chu that would implement this expansion.)
What’s been gratifying is seeing how many companies are getting the importance of expanding CBM review. Just today, over 40 companies sent a letter to Congressional leadership in support of expanding the Covered Business Method review program. And we’re not talking about just tech companies. The list has major tech companies, sure, but it also includes companies like Kroger, Macy’s, Morgan Stanley, Wal-Mart, J.Crew, Hearst Corporation, and QVC. Tim Lee also covered the letter over at the Washington Post.
Industry after industry that has suffered at the hands of patent trolls is lining up to support expanding CBM review. It’s nothing short of amazing to watch.
Of course, not everyone likes the idea. In particular, some people are showing their dislike by expressing “concern that [expanding CBM] unfairly discriminates against deserving patents” and “could undermine a broad universe of innovation…” At the same time, they (naturally) agree that “patent quality” is a problem.
The main issue I take with these sorts of statements is that they have nothing to do with what’s actually being proposed. No legislation that’s been introduced or is being discussed would change what’s patentableEligible to be patented. To be patent-eligible, an invention must fall into the categories listed in 35 U.S.C. § 101 (i.e., process, machine, manufacture, or composition of matter) and cannot be an abstract idea or a law of nature. and what isn’t.1
The only thing that would change is whether the PTOPatent and Trademark Office, informally used interchangeably with USPTO. can fully review a broader set of patents. If one agrees that “patent quality” is a problem, then it only makes sense to let the experts (i.e., the PTOPatent and Trademark Office, informally used interchangeably with USPTO.) help to fix that quality problem.
Major companies in a huge variety of industries support expanding Covered Business Method review. Remember:
You can tweet your support, too!
[tweetbutton hashtag=’FixPatents’]I support expanding Covered Business Method review and I want the world to know![/tweetbutton]
1You can check for yourself on our Guide to Patent Reform Legislation. The sections of the patent law that define what’s patentableEligible to be patented. To be patent-eligible, an invention must fall into the categories listed in 35 U.S.C. § 101 (i.e., process, machine, manufacture, or composition of matter) and cannot be an abstract idea or a law of nature. are 35 U.S.C. §§ 101, 102, 103, and 112. They aren’t mentioned in any of the current bills.
