Posted by Horacio Gutierrez
Corporate Vice President and Deputy General Counsel

Yesterday, the Senate passed S. 23, the “America Invents Act,” by a vote of 95-5.  Microsoft applauds the Senate’s action and looks forward to further consideration of patent reform by the House of Representatives.
 
S. 23 reflects significant progress toward consensus-based reform that serves three important policy priorities: (1) it provides USPTO with the resources it needs to make further progress toward improving patent quality and enhancing the efficiency of USPTO processes and procedures; (2) it removes obstacles to harmonization of patent processes and procedures by enabling the U.S., after many years of delay, to join the rest of the world in adopting a “first inventor to file” system for granting patents; and (3) it provides USPTO with additional administrative tools to help eliminate questionable patents.  At the same time, S. 23 eliminates several controversial, litigation-related provisions that have been obstacles to progress in recent years.   The Senate bill provides a solid and highly constructive basis for further deliberations in the House.
 
As House Members take up patent reform, we urge that caution be exercised in consideration of provisions that could be construed to exclude or restrict the availability of patents for certain technologies, or to discriminate against certain subject matter in a way that threatens the unitary nature of our patent system.  U.S. innovators increasingly face attempts by foreign governments to restrict the availability of patents in key areas of innovation.  Any similar provisions in U.S. law would not only be bad policy, but could invite ill-advised carve-outs from patent protection in other countries that would ultimately harm U.S. innovation and competitiveness in a global marketplace.  Such provisions are also unnecessary, since there are already provisions of general application, including those relating to the submission of prior art by third parties and post-grant review proceedings, that can be employed to address concerns raised with regard to problematic patents without the need to create special rules that can create obstacles to the global competitiveness of American companies.  
 
Again, we thank Chairman Leahy and Senators Grassley, Hatch and others for their strong leadership in advancing consensus-based and meaningful patent reform legislation, and we look forward to further progress and action in the House of Representatives.