And Claude Barfield and John Calfee weigh in via the Wall Street Journal Online (subscription required). They argue among other things:
Before rushing to enact major changes, Congress should remember that its past reforms have often spawned new problems. For example, the Court of Appeals for the Federal Circuit, a specialized intellectual property court, was created in 1982 in order to centralize judicial decisions on patents and end forum-shopping. It accomplished that, by and large — but at the cost of producing a court, peopled largely by patent attorneys, that instinctively sided with patent holders, strengthened patent protection, lowered the bar for inventiveness (“non-obviousness” in patent-law jargon), and paved the way for large damages against alleged patent infringers.
Interesting. I prefer John Duffy’s assessment of the problems with the Federal Circuit–problems with its monopoly status and lack of feedback from peer circuits. It strikes me as less likely that the Federal Circuit behavior can be explained by an “instinct;” it’s not a penguin. More likely; the Federal Circuit judges had a sense that the patent system needed to be strengthened–which was correct–but erred in the direction of adding certainty *late* in the process, at the litigation stage–which was not warranted given the problems at the PTO. Judges acting less in isolation might have not been so tempted to overreach.
They also claim that “first-to-invent” is inferior to “first-to-file” because it lacks clarity and invites disputes. One should note that this has been hotly contested; is “first to invent” superior because it allows the inventor time to perfect the invention before filing? How many disputes arise from first to invent, in fact; how difficult would they be to adjudicate? I have been told, not very, as there is almost always a paper trail. Does “first to file” invite the filing of vague claims too early on?