Patent Reform Bill Released: More Of The Same
from the chances-of-passing-look-hazy dept
As was expected, the Senate has released its latest attempt at patent reform, and it’s basically more of the same. It has plenty of holdover ideas from the last few (failed) attempts at patent reform, and a few minor changes that (for the most part) aren’t going to make those who oppose the bill any happier. If they couldn’t get previous patent reform bills passed, it seems unlikely that this one is going anywhere. Just like last year, there’s some good and some bad in the bill, and it’s difficult to say on the whole if the good and the bad cancel each other out. But, the “reforms” in the bill won’t do much to solve the real problems of the patent system.
It still tries to switch the US to a “first to file” system, rather than “first to invent” — which just encourages more patents being filed faster, rather than better patents being filed. It has the same (controversial) damages setup as last year, which would be useful in limiting damages from infringement, but which many special interests hate. It does allow for third parties to get involved during the patent review process (good) and also establishes a process for post-grant review (good), but greatly limits how that post-grant review will work (bad). Tragically, it still includes the “pilot program” to let patent lawsuits be handed to “interested judges” to build “judicial expertise in patent litigation.” We already know this is a bad idea, because we’ve already seen what happens when all patent cases at the appeals court level go to a single court, based on the same idea: that the single court would have more judicial expertise. In practice, that’s meant that the court and its key rulings have been dominated by former patent attorneys, who tend to like more patents. Why replicate that disaster at the lower courts as well?
Among the new stuff, as mentioned, it limits the plans for post-grant review (bad) and raises the bar to get a willful (treble damages) infringement award (very, very good), such that just having seen the patent no longer counts as willful infringement. Of course, it also would require lower patent filing fees for smaller companies — again encouraging greater patent filing at a time when it’s pretty clear we need fewer patents, not more.
All in all, still a really mixed bag of good and bad, with the likelihood of it actually going anywhere being pretty minimal. Wake us when Congress realizes that we need real patent reform.