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Taxing the Patent Laws
This past October, Rep. Howard Berman (D. Calif.) introduced the Patent Quality Assistance Act of 2004 (H.R. 5299, the “PQA Act”). The PQA Act seeks to implement many of the recommendations of the much-publicized FTC (October 2003) and National Research Council (April 2004) reports. The bill has been referred to the Judiciary Committee, which is not expected to act on it before the end of the 108th Congress. Rep. Berman introduced the bill at the end of this Congress, however, “with the intent of framing the debate going into the 109th Congress.” 150 Cong. Rec. 1935.
This, of course, is not the first time Rep. Berman has proposed legislation affecting patents. On Oct. 3, 2000, for example, he introduced the “Business Method Patent Improvement Act of 2000″ (H.R. 5364, the “2000 BMPI Act”). On April 3, 2001, he introduced two bills, one having the same name and purposes as the 2000 BMPI Act (H.R. 1332) and the “Patent Improvement Act of 2001″ (H.R. 1333).
As some of the titles suggest, much of this legislation is directed at problems believed caused by business method patents. These bills would attempt to address these problems in various ways, but the solution advanced by the recent PQA Act is the most extreme. Section 8 of the PQA Act would add a new subsection (d) to 35 U.S.C '103 which would provide that a “business method invention shall be presumed obvious … if the only significant difference between the combined teachings of the prior art and the claimed invention is that the claimed invention is appropriate for use with a computer technology … ” (emphasis added). There would be an exception when the “ application of the computer technology is novel” or when “the computer technology is novel and not the subject of another patent or patent application.” The presumption would be rebuttable “upon a showing by a preponderance of the evidence that the invention is not obvious [sic; would not have been obvious] to persons of relevant skill in all relevant arts.”
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