America-Israel Patent Law Blog

Ok, notwithstanding the catchy title, my intent here is not to indict all members of Congress who voted in favor the recently-enacted “America Invents Act”, the real title of which is the “America Invents New Ways to Obfuscate and Complicate Patent Law Act”. I just want to shed a little light on one of those members, namely Carl Levin, the senior Senator from my home state of Michigan.

Mr. Levin, a democrat, was elected to the Senate in 1978 and has been reelected every six years since then. He’s generally not been a flashy Senator. He first got my attention when I wrote his office while the Obamacare bill was being considered. The bill as drafted contained a provision that would have forced expats to buy health insurance for all members of their households at a cost of $750 per person. But as ex-pats they wouldn’t have been able to use the insurance. So I emailed his office to complain about that. When I eventually received a response – several weeks later – it was completely off target, relating to issues I hadn’t raised and not addressing the one I had. Let’s just say this is not the way to try to win over this particular voter (although the provision that concerned me was eventually dropped from the bill).

Then in the spring of 2010, Senator Levin got himself a boatload of publicity when, as chairman of the Permanent Subcommittee on Investigations, he excoriated senior members of Goldman Sachs over their role in the financial meltdown of 2008, using some colorful language that U.S. Senators tend not to use in public.

Had the Senator taken steps in 2006 and 2007 to ensure that the meltdown never happened, I might have been impressed. Here, given that the gate had been left wide open and the horse had left the barn long before, it was obviously just posturing (but it sure made for a good sound bite!). Which is why it came as no surprise when last month that same expletive-spewing Senator Levin voted in favor of the AIA, including its tailor-made provisions to protect the banking industry from patent infringement lawsuits. Those provisions were a response to litigation instituted by DataTreasury, a company (some would say patent troll) that had patents covering check processing methods and that sued several banks for infringement. Oh, those pesky trolls! If you’ve got the money to buy legislation, why should you have to suffer those trolls, or even legitimate inventors, like everyone else does? The new law makes it easier for banks to challenge such patents and to keep them tied up in proceedings before the USPTO, with litigation frozen for the duration. One wonders if after the public dressing-down Senator Levin gave the Goldman guys, they privately made up – and we’re not talking simply doing a pinky handshake and saying “shalom shalom kol hazman, brogez brogez af paam” like little kids here in Israel do.

Not only isn’t it surprising that the Senator voted in favor of the AIA, it was pretty much a foregone conclusion, as the AIA includes some classic pork: the establishment of a USPTO satellite office in Michigan, which should be good for a few hundred jobs; plus the establishment of prior user rights, which will effectively let the auto companies implement new processes and equipment that they maintain as trade secrets, then in certain instances use that same secret implementation as a defense to a charge of patent infringement.

The icing on the cake came in the form of this press release from Senator Levin’s office, the first sentence of which reads: “After years of work to ban patents on tax shelters, Sen. Carl Levin’s legislative efforts became law when, on Friday, September 16, 2011, President Obama signed the America Invests Act and cited U.S. patent reform as a key component in job growth”. It’s not a typo: the bill is referred to later in the press release by the same name. Impressive.

Keep up the good work, Senator. It’s comforting to know that if I ever become obscenely rich and need some legislation to help me keep my gelt, I’ll have a sympathetic ear.