Oblon, Spivak’s Scott McKeown quoted in International Business Times

March 10, 2011 – In The News
International Business Times, Thursday, March 10, 2011

Oblon, Spivak's Scott McKeown is quoted in a news story about the new patent law which is currently before Congress. The new law's major provision is moving the U.S. from a first-to-invent system to a first-to-file system. Other major changes involve changes to the review process in cases where patents are challenged.

Mr. McKeown said the changes in the review process may help, but the effect won't be felt for several years at least. He added that the current system for reviewing patents was first set up in 1999 and it took until 2007 for it to really start working, in part because the PTO didn't have the staff in place. If the PTO can implement the new system of review more quickly, then that will make a big difference, he said, but the effects won't be felt until the middle of the decade at least.

Either way, he said, the changes would not affect existing patents and thus will not affect the current pending suits, such as that between billionaire Paul Allen and several Internet companies, including Google.

Mr. McKeown says the biggest driver for "patent trolls" - companies that buy patents and then sue others for infringement as their primary business - is contingency fees for attorneys. By filing dozens, if not hundreds, of suits, which cost little to file, a patent-holding company can collect millions, McKeown said, and if an attorney loses one case there is always another. The new law doesn't address that at all.

Mr. McKeown said one part of the bill that may end up helping the most is eliminating the fee diversion. Patent examiners are always dealing with a huge backlog of applications, and they don't always have the expertise in the relevant fields. By keeping the money from fees "at home" in the PTO, the agency can reinvest in itself. "They have IT systems from the early 90s," he said. "They can't update them because the money goes to fund some other program."

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