04/13/2010 07:20:00 AM EST
Bringing Patent Law Overhaul Back to the Future: Three Key Considerations to Avoid Downgrading Our Nation's Patent Laws
On the surface, heady days for American
innovation appear at hand. For the first time in 30 years, the U.S. Supreme
Court will denote the patentable distinction between applied and abstract
ideas. And Congress appears poised to pass a comprehensive patent reform bill.
Yet on substance, the Senate Compromise bill is a step backwards from the
current status quo. In this Analysis, John Squires examines the bill and
discusses changes to be considered. He writes:
Where's the Consensus?
Any patent statute aiming to
fill the big shoes of the 1952 Patent Act, should have broad industry sector
backing. The compromise bill has not garnered any significant support over last
April's bill, and, in fact, some stakeholders have gone missing.
Lack of consensus is likely
not a result of any one particular affirmative bill provision, but rather what
the bill fails to do in toto. On each hot button issue, ranging from damages
(how much are patent rights worth), to willfulness (willful disregard of others
rights, leading to enhanced, often treble damages) to venue (where defendants
can be haled into court), to inequitable conduct (by what criteria must
information be disclosed), no transparency exist as to what standard rationale
economic actors must meet in ordering their conduct. This lack of transparency
hurts the major stakeholder groups -- the tech sector, industries mature to
patent issues (the manufacturing and branded pharmaceutical sectors) and the
independent inventor groups alike. However, understanding how each is
disaffected may produce a bridge between them and allow substantive provisions
to emerge to salvage a meaningful reform framework.
. . . .
Finally drilling into the
issues, the compromise bill provisions are a step back from the 1952 Act and
decisional law that has developed since. Several provisions represent severe
downgrades to where decisional law now stands interpreting the 1952 Act.
Willfulness: In 2007,
the Federal Circuit recalibrated the standard for determining willful behavior
to 'objective reckless.' The compromise bill threatens to give back these gains
by failing to require concrete notice provision, allowing any and all facts in
addition to knowledge of a patent to suffice as a trigger and including a
'close case' standard that will be overly porous as compared to current law.
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