[Congressional Record Volume 157, Number 104 (Wednesday, July 13, 2011)]
[Extensions of Remarks]
[Page E1311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               PTO LETTER

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                         HON. DANA ROHRABACHER

                             of california

                    in the house of representatives

                        Wednesday, July 13, 2011

  Mr. ROHRABACHER. Mr. Speaker, a fellow southern Californian recently 
was featured in the LA Times with respect to an issue involving one of 
his patents (``Defending patents takes financial toll on inventor,'' LA 
Times, June 14, 2011). In addition, this week, a letter to the editor 
from former Senator Birch Bayh appeared in the Congress Blog from 
Hill.com and referenced a letter that the former Senator recently 
received from the U.S. Patent and Trademark Office (PTO) about the very 
same issue.
  While I am not weighing in on the merits of this particular case, the 
underlying issue involved should be of great concern. Therefore, I am 
submitting the aforementioned PTO letter.
                                              United States Patent


                                         and Trademark Office,

                                     Alexandria, VA, June 3, 2011.
     Hon. Birch Bayh,
     Venable LLP,
     Washington, DC.
       Dear Mr. Bayh: Thank you for your recent letter on behalf 
     of Lawrence Lockwood. The letter indicates that Mr. Lockwood 
     filed a petition for writ of certiorari in the United States 
     Supreme Court seeking review of the Federal Circuit's 
     decision affirming the trial court's holding that state tort 
     claims by patent holders against persons who file sham 
     reexamination requests are preempted by Federal patent law. 
     The letter asks the United States Patent and Trademark Office 
     (USPTO) to confirm that there are no procedures permitting a 
     damages remedy for patent owners subjected to sham 
     reexamination requests, and to state whether it sees a 
     problem with patent owners pursuing state tort claims for 
     such damages.
       The USPTO can confirm that it does not have a procedure 
     that offers a damages remedy for patent owners in Mr. 
     Lockwood's position. As to your request for the USPTO's 
     support of Mr. Lockwood's case, please understand that the 
     USPTO cannot participate in the case without the Solicitor 
     General, who rarely files uninvited amicus briefs at the cert 
     stage. Moreover, any amicus brief would be due very shortly 
     at this point, given that Mr. Lockwood has already filed his 
     petition.
       Please know that the USPTO is sympathetic to the concerns 
     of patent owners. The agency is particularly concerned 
     whenever a patent owner is subjected to a fraudulent 
     reexamination or some other form of harassment. Thus, the 
     USPTO will be monitoring Mr. Lockwood's certiorari petition 
     closely. At the same time, we note that the USPTO has the 
     power to police misconduct through its Office of Enrollment 
     and Discipline (OED). Anyone with knowledge of unethical 
     conduct can report it to OED for investigation.
           Sincerely,
                                                  David J. Kappos,
     Under Secretary and Director.

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