The potential nomination of Johnson & Johnson ($JNJ) chief intellectual property counsel Philip Johnson as director of the U.S. Patent and Trademark Office suggests efforts to reform the patent system are dying, especially changes to rein in so called patent trolls.
The National Journal and others say he is being considered for the post.
On behalf of the Coalition for 21st Century Patent Reform--whose members include a plethora of pharma and device giants like J&J, Medtronic ($MDT), and Pfizer ($PFE)--Johnson opposed reform efforts in December 2013 testimony before a Senate Judiciary Committee hearing on limiting patent troll abuse.
For example, he opposed increasing pleading requirements that call for more information to be included in patent infringement claims and complaints, saying, "With heightened, technical pleading requirements, the parties will be drawn into preliminary motion practice, e.g., fighting over whether the pleading is properly framed, rather than getting down to the merits of the case," according to his prepared testimony.
Overall, Johnson stressed that several judicial reforms are already under way, and said that the Coalition "believes that a cautious approach should be taken towards additional reforms until better information becomes available concerning the reform measures that are now being implemented or that are already in place."
Pro-reform group, the Coalition for Patent Fairness, said in a July 17 letter to Congress that patent troll suits have quadrupled since 2005. "Last year, they sued over 7,000 defendants and sent thousands more threat letters. This activity cost the U.S. economy $80 billion in 2011, and productive companies made $29 billion in direct payouts," the group wrote.
Amid the nomination rumors, the Coalition for 21st Century Patent Reform released a statement July 2 saying the group is not in the anti-reform camp, but said, "Drafting legislation based on the premise that every patent holder who wishes to enforce its rights is a patent troll, or based on the rhetoric that the patent system is somehow 'broken,' weakens all patents, favors business models that do not rely on innovation and tilts the balance in favor of patent infringers, thereby discouraging investments in R&D and innovation and the creation of American jobs."
Patent trolls acquire patents from technology companies and then sue others for infringement. Orthophoenix LLC of Dallas, TX, last year acquired 500 kyphoplasty patents related to spine surgery from Medtronic and then sued Stryker ($SYK) for patent infringement about six months later, reports MD+DI.
Given all the buzz being generated already, expect Philip Johnson's confirmation hearing to be contentious if he does indeed receive the nomination from President Obama. The National Journal Speculates the reform advocates could kill his nomination entirely.
- read The National Journal's take
- read Johnson's testimony
- Read the Coalition for Patent Fairness letter to Congress
- Read the Coalition for 21st Century Patent Reform statement