Patent Reform Act Stalled in the Senate - Long-Debated New Law is Likely to Be Lobbied Even More

Health Care Reform Bill Passed - Patent Reform Act Stalled in the Senate - Long-Debated New Law is Likely to Be Lobbied Even More

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The Biotechnology industry club (Bio), along with a large group of industry organizations and clubs opposed to the Patent Reform Act of 2007, are breathing a dinky easier now that the bill is tied up in a Senate committee that apparently has great things to do in an choosing year. And with senators precisely getting an earful of conflicting lobbying, it's entirely likely that the reform act, which passed the House last fall, will remain stalled in the more deliberate legislative body for some time.

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Health Care Reform Bill Passed

The Patent Reform Act of 2007 is largely the product of the Coalition for Patent Fairness, led by Microsoft. Coalition members see the reform act as a way to stem the flood of patent litigation and multi-million-dollar awards that threaten their profitability. They want to make it harder for patent trolls in singular to extort large payouts to avoid even more high-priced trials, and they want to safeguard licensing revenues.

Bio is aligned with the biotech and pharmaceutical industries, the patent bar, the Patent Office pro relationship and 13 other unions with a vested interest in the current system. The club cites a study it sponsored, titled "The Economic Implications of Patent Reform," which says that the legislation would increase patent-related costs and undermine the United States' technological leadership. Bio is particularly wary of provisions dealing with damages tied to infringement, opposition to the patent after it has been granted and the legal view of inequitable conduct.

Infringement Damages

According to the study that economist Robert J. Shapiro and health care course specialist Aparna Mathur conducted, the way the reform act would award damages for patent infringement will indirectly encourage infringement and threaten innovation. Under the current law, courts compare damages case by case, based on losses incurred or the value to the infringer, and it protects the patent holder's right to recover lost revenues or licensing royalties. The new law would award damages based on the patent's value as compared to what was in place before the patent.

The study says the cost of infringement suits will increase substantially under the new law because judges and juries will need to compare all aspects of an infringed patent and everything that existed before the patent to settle the economic difference. Costs linked to explore and time to understand all art may be especially damaging in the biomedical industry. Unlike industries such as It and software, where innovations are incremental and the relative value of new inventions as compared with prior art is easy to assess, the offering of a new patented element in the biomedical shop may be far more complicated and its point in the ample art difficult to assess.

Redefining how damages are calculated in this manner is likely to ensue in smaller awards, and if the financial consequences of infringement decline, infringements may come to be "just a company decision." That in turn will adversely work on the rate of patenting, and innovation will suffer.

Post-Grant Opposition

The reform act replaces post-grant patent re-examination with a European Union-style post-grant opposition. Both methods permit a third party to ask the patent office to think patentability based on relevant prior art. Under re-examination, the Uspto examiner and the patent owner are the key parties, while a challenger plays only a small role. In an opposition, a challenger participates in the process and can bring experts, new experimental data, and other relevant data for examination.

The Bio study says the convert will increase post-grant costs. Litigation in the U.S. Costs more than it does in the Eu, where attorney fees for opposition proceedings are strictly regulated. The Bio diagnosis shows post-grant opposition would impose a predicted increase to costs of these rulings and decisions in the U.S. To an estimated .6 billion annually from the current cost of under million. That will drain resources that could be devoted to innovation. Further, investors will more seriously question the risks of patenting.

Inequitable Conduct

If the doctrine of inequitable escort becomes part of federal patent law, an whole patent could be canceled whenever intentional omissions or misrepresentations in any part of the application are uncovered.

The broad use of the doctrine will increase investor uncertainties as to risk, value, and economic possible of patents, which they might otherwise finance, buy or license. This would discourage innovation. A narrower version of the doctrine that may be implemented assures that a patent would be unenforceable only if the misrepresentations or omissions could be proved that they would have changed the Uspto's former decision to grant the patent.

Together, these three provisions would make patents harder to secure, easier to invalidate, and less high-priced to infringe. The net effects would sacrifice the value of patents, dampen R&D and the slow the pace of innovation as we know it in the United States. The differences in the strangeness of assessing damages across industries raises the idea that perhaps rules nearby patents should be tailored to each industry.

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