Late in the day on July 19, the U.S. Senate Judiciary Committee gave its approval to an amended version of the Patent Reform Act of 2007. The Senate action came a day after the U.S. House Judiciary Committee approved a substantively similar bill. While some differences between the House and Senate bills will need to be resolved in conference, passage and enactment of the legislation at this point seems to be much more likely than in years past when similarly extensive overhauls to the nation’s patent laws have been proposed.
Both versions of the Act attempt to curb the frequency of patent lawsuits both by replacing the current “first to invent” standard with a “first to file” patent system, as well as by establishing a “post-grant opposition” authority within the Patent & Trademark Office itself to address and resolve challenges to newly awarded patents. The bills also would restrict permissible venue options for patent litigants to avoid forum-shopping, would increase the factual showing required of claimants in order to prove a case of willful infringement and, thus, treble damages, and would allow courts to award damages based on a patent’s “contribution” to an infringing product’s market demand (which, as an aside, might address the scope of damages for patent infringement, but also would raise an astoundingly complex fact issue).
Recent Congressional action notwithstanding, support for the legislation, as with all attempts at patent reform, remains mixed. Those who invest heavily in research & design, such as pharmaceutical companies and technology licensors such as Qualcomm, have opposed the reforms as an attempt to weaken their ability to protect their intellectual property. On the other hand, technology manufacturers like Apple and most software publishers have supported the reforms as welcome relief from the high volume of patent litigation that tends to flow from products that incorporate a high volume of technological concepts or components.
It remains to be seen whether Congress will be able to work out the differences between the two versions and send a final bill to the White House that the President will be willing to sign. However, the mere fact that the legislation has made it this far means that this is a reform attempt well worth watching.
The Senate version of the Act is available here, the House version here.