We are down to the last few days of summer, and patent reform appears to be gaining some initial momentum in the Senate. Earlier this month, there was a bipartisan bill introduced in the Senate by Sens. Orrin Hatch and Patrick Leahy. Patent law has never been divided or amenable to classification along traditional political lines. But the debates and compromises among the stakeholders (PhRMA, BSA, IPO, PIA, AIPLA and the like) will be interesting to watch.
This particular bill has several interesting provisions:
• Post-grant review that is available for 12 months from the date of patent issuance and also beyond that period if the challenger can show significant economic harm. There appears to be an attempt to limit the second window for challenges. Will it work?
• A venue provision that attempts to limit forum shopping.
• Federal Circuit appeals for claim construction rulings as a matter of right. This provision interjects the Fed. Cir. into all claim construction rulings perhaps delaying settlement.
• Apportionment of damages based on the novel or non-obvious feature(s) of the patented invention. It looks like a codification of some Georgia Pacific factors but one that is much sought after by the IT industry.
• Limiting the inequitable conduct defense to circumstances when at least one claim is invalid. Sen. Leahy's comment on the bill suggests that the generic industry is not pleased with this provision.
• A change from a first-to-invent to a first-to-file system.
It looks like this attempt at patent reform may well be the most significant in our lifetime since the last major reform was 54 years ago, and the stakes are high for all interested parties.
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