Patent Reform Act

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On a related note, Chief Judge Michel of the Federal Circuit has written a letter (following up an earlier, broader letter and his Congressional testimony, discussed at Patently-O) strenuously arguing that the Act’s damage apportionment sections are impractical and that Congress should either retain the current damages law which has undergone “decades of refinement” and is “highly stable and well understood by litigators as well as judges.” Here is some discussion of Judge Michel’s letter:
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Continue Reading The Federal Circuit’s Chief Judge Michel on the Patent Reform Act of 2007

When the Patent Reform Act of 2007 was unveiled, the conventional wisdom was that the law would be enacted and remain largely intact, unlike the 2006 version which was never sent to the White House. But it has hit its first delay, shortly after its first public hearings last week. Earlier this week, five Senate Judiciary Committee (which is considering the Act) members — Tom Coburn (R-Oklahoma), Jeff Sessions of (R-Alabama), Chuck Grassley of (R-Iowa), Jon Kyl (R-Arizona) and Sam Brownback (R-Kansas) — sent a letter to the Committee’s Chair Senator Patrick Leahy (D-Vermont) and its Ranking Member Arlen Specter (R-Pennsylvania). The Senators sought a delay in voting on on the Act and reporting it out of the Committee to allow time for additional hearings to explore, among other issues:
Apportionment of damages;
Post-grant opposition procedures;
Granting the USPTO broad rulemaking authority;
How to improve patent quality; and
“[E]xamining the problem of speculative litigation and alternatives to stopping unnecessary and costly litigation.”
Blogs have been actively covering the letter and its implications:
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Patent Prospector
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Promote the Progress
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Patent Prospector
Patent Baristas
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Continue Reading Patent Reform Act Hits a Snag?

Yesterday, Senators Leahy (D-Vt) and Hatch (R-Utah), and Representatives Berman (D-Calif.) and Smith (R-Texas) announced their new Patent Reform Act.  You can read their press release on the Act here.  The Act is very far reaching and is worth review, in order to prepare for it and/or inject yourself into the debate over it.  Here are the the portions of the Act I found to be the most interesting (the other major changes follow in a list after the jump):

  • Expands reexam procedures and allows third parties to file “petitions for cancellation” with the Patent Trial and Appeal Board asserting issues pursuant to 35 U.S.C. Section 282(a)(2) & (3).  This proceeding will include a discovery mechanism and the patent will not be afforded a presumption of validity.
  • Limits venue to districts in which either party resides or in which defendant committed infringing acts and has a regular place of business. 
  • Gives the Federal Circuit jurisdiction over interlocutory claim construction appeals.

Each of these is a major change.  Petitions for cancellation could develop into another fast-track strategy for plaintiffs, like ITC proceedings for goods shipped internationally.  And the lack of presumption of validity could make the proceedings very popular.  The venue limits, though perhaps not surprising, could have a big impact.  They will likely reduce the number of pre-answer, non-substantive litigation skirmishes that "venue shopping" results in.  And they could be harmful to some communities, like Marshall, Texas, that have developed cottage industries around patent litigation.  Finally, giving the Federal Circuit jurisdiction for interlocutory claim construction appeals may save money by reducing discovery, dispositive briefing and trials that are overruled by claim construction reversals.  But it could also dramatically increase the Federal Circuit’s docket, if it has to see most cases twice, thereby doubling the volume of briefing, instead of once.Continue Reading Congress Turns to Patent Reform