March 16, 2011

Bob Null Doesn't See Benefit in Indiana Creating Its Own Patent Law

An Indiana lawmaker wants to explore whether the state should create its own patent law, focusing on specific business method processes that aren't covered by the federal patent system, Indiana Lawyer reported in its story, "Lawmaker Asks General Assembly to Study Creation of State Patent Law."

"I've never really given this any thought and can't see any benefit to having a state patent law," Bob Null of Baker & Daniels told Indiana Lawyer in the story."Among other things, it seems that it would only be enforceable within the state and that just isn't logical for most companies to have different patent procedures based on where you're located at."

The idea, Indiana Lawyer reported, addresses long-standing uncertainty about patent coverage for the inner workings of a product or service that a business might want to create, and for Indiana it applies to both existing and emerging industries where these methods become more important, the story said. Those who want to explore a state statute say it could resemble the approach taken by jurisdictions on trademarks and other intellectual property issues that aren't specifically regulated by the federal patent law, but within the Indiana legal community opinions differ on whether this would even be possible.

Null doesn't believe a proposed structure could sidestep pre-emption concerns, Indiana Lawyer reported. That would prevent Indiana from crafting its own patent protections on ineligible patent subject matter. Null looked to a passage that reflects states are not free to offer equivalent protections to ideas that Congress had determined should belong to all, the story said.

Sen. James Merritt, R-Indianapolis, authored Senate Resolution 10 that urges the state's legislative council to establish an interim study committee during the General Assembly's off-months that would explore the creation of state patent law, the Indiana Lawyer story said. That resolution isn't binding, but asks the legislative leadership to consider that idea later in the year. The resolution was assigned to the Senate Judiciary Committee but did not receive a hearing.
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