The National Law Journal reports that a bipartisan group of 25 Senators have requested Senate Majority leader Harry Reid to bring patent reform legislation to a vote -- soon.
Fourteen Democrats, 10 Republicans and Sen. Joseph Lieberman (I-Conn.) signed the Sept. 15 letter. Intellectual property insiders say there hasn't been this much support for a patent bill since the American Inventors Protection Act of 1999.
The amended bill, which enjoys widespread support from industry and intellectual property groups, would give the U.S. Patent and Trademark Office (PTO) the authority to adjust patent and trademark fees to address its backlog problem, and it includes a procedure allowing for challenges to issued patents. To improve patent quality, 3rd parties will now be allowed to comment on pending patent applications. The new first window review period has been reduced from 12 months to 9 months - and provides for a review procedure to weed out patents that should not have issued. The new standard has been raised for instituting a procedure by requiring a challenger to show that it is "more likely than not" that at least one claim is unpatentable. The burden of proof that a patent is invalid lies squarely on the challenger and any patent granted by USPTO is presumed to be valid.
Another key provision would change the U.S. patent system to award patents to the first to file instead of the first to invent. Other sections would require courts to consider only "methodologies and factors that are relevant to the determination of damages" and to multiply awards only for damages amassed after the infringement became willful. Willfulness must be demonstrated by clear and convincing evidence that the infringer acted with objective recklessness. Mere knowledge of an existing patent is not sufficient to support a finding of willfulness.
The coalition supports the bill because "it would bring a great deal of certainty" to the PTO funding process, Johnson said. "Right now, what troubles the economy is that people are reluctant to take risks," he said. "Investing in research and development and patenting and building manufacturing facilities [to make new products] involves risk and reliance that what you're going to be able to sell will be profitable. [The patent application] backlog acts as a drag on risks that people might take."
Posted by Bruce Lehr September 19th 2010.