Advanced Topics in Patent Law

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The Patent Reform Act
INTRODUCTION
The USPTO has been unable to keep up with its workload, resulting in major delays. There have also been questions about patent quality and increased litigation. The last time the patent system was updated was more than 50 years ago. Since then, there have been major improvements in science and technology. Recent Supreme Court decisions have made it clear that it has been easy for questionable patents to be obtained and difficult to challenge them. However, it is not up to the courts to change the law, this is a task for Congress. As Senator Leahy has stated, “[if] we are to maintain our position at the forefront of the global economy and continue to lead the world in innovation and production, we need an efficient and streamlined patent system that issues high-quality patents while limiting wheel spinning and counterproductive litigation.” Low quality patents have inhibited innovation and competition, resulting in the harm of consumers and businesses. Litigation of these low quality patents has been unduly costly and cumbersome. Too many questions of patent validity have been decided by the courts instead of the patent office. This has caused a huge waste in resources at the PTO and uncertainty regarding issued patents. The threat of excessive damages in litigation has also caused a hindrance in innovation. In order to address these problems, Congress has introduced two bills that are both entitled the Patent Reform Act of 2007 (“the Act”). These bills would amend language in Title 35 of the United States Code. This paper will first briefly introduce the history and current status of the Act. It will then discuss the parties that have formed which are either for or against the Act. Next, this paper will summarize some of the proposed changes of the Act. It will then analyze the pros and cons of those specific changes and the consequences if those changes are implemented. BACKGROUND

A.Procedural History
The 110th Congress is currently considering the Patent Reform Act of 2007. If enacted, it could be the most significant patent reform legislation in over 50 years. Democratic Congressman Howard Berman introduced the House Bill and Democratic Senator Patrick Leahy introduced the Senate Bill, both on April 18, 2007. These bills, H.R. 1908 and S. 1145, respectively, call for the following changes to the patent system: •Switching from a first-to-invent system to a first-to-file system •Allows for assignee filing

Heightens standard for finding willfulness
Provides a right to interlocutory appeals to the Federal Circuit on claim construction •Requires patent applicants to submit a search report and other information relevant to patentability Although there are differences between the two bills, the main similarities are listed above. Some of these provisions would harmonize American law with the rest of the world. Although it appears that these provisions would significantly reduce the number of problems with the current patent system, there has been much debate about whether the bill should be enacted. “[L]egal and business groups are finding themselves at odds over the legislation, with some saying it would reduce patent litigation costs and improve patent quality while others say it would do just the opposite.” B.Current Status

The Act is currently being considered for passage by Congress. The Patent Reform Act of 2007 was introduced in both the House and Senate on April 18, 2007. As amended, S. 1145 reported out of committee on July 19, 2007. As amended, H.R. 1908 reported out of committee on July 18, 2007. The House passed H.R. 1908 on September 7, 2007. C.Parties for and against the Act

1.Coalition for patent fairness
The Coalition for Patent Fairness consists mainly of large firms in favor of broad reforms to the current patent laws. They believe that the current patent laws are unbalanced because it gives small patent holders too...
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