Senate Panel Amends Patent Reform Bill
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Patent reform in Congress took a tentative step forward today with the Senate Judiciary Committee approving several amendments to the proposed legislation.
Amendments submitted by Chairman Patrick Leahy (D-Vt.) and ranking member Arlen Specter (R-Penn.) tweaked the language of the bill involving damages, venue and post-grant reviews of patents. The panel did not approve the overall bill.
The Patent Reform Act of 2007 was introduced in both the House and the Senate to much fanfare in April. The technology industry strongly supports the bill.
But since the measure was introduced, pharmaceutical, bio-technology and manufacturing companies have lined up to oppose the key portions of the legislation. House and Senate leaders have been engaged in protracted talks with both sides.
"Negotiations rarely leave everyone with everything they would like. I have tried to show flexibility and accommodate others' concerns where possible," Leahy said Thursday. "Frankly, I favored the provisions in the bill as we introduced it. I understand that other members and constituents of others have interests and concerns and have tried to incorporate recognition of them as we have proceeded."
The overall proposal before the House and Senate would allow reviews of patents after they have been granted, creating a so-called "second window" to challenge the validity of a patent. The bill would also narrow the definition of willful infringement, which brings treble damages in infringement lawsuits.
The legislation also calls for limiting infringement damages to the economic value of the patent's contribution to an overall product. Currently, damages are based on the entire market value of the product.
"Today's amendment addresses a number of important issues. It tightens the post-grant review process to address concerns about abuse," Leahy said. "The amendment also addresses questions that have been raised about the damages provision. The bill is intended to align damage awards with the value of the invention."
According to Leahy's amendment, infringement damages would be limited, "unless the claimant shows that the patent's specific contribution over the prior art is the predominant basis for market demand for an infringing product or process."
Spector's amendment seeks to eliminate the popular practice of "forum shopping" by limiting venues for patent-infringement cases to where the primary plaintiff resides or has a place of business; the primary location of the defendant; or "where the defendant has committed substantial acts of infringement and has a regular and established physical facility."
The Coalition for 21st Century Patent Reform, which opposes the key elements of the bill, issued a statement saying the protracted debate over the bill "underscores that there remain deep concerns and divisions regarding the legislation as currently drafted."
The Computing Technology Industry Association (CompTIA) issued a statement urging Congress to stay the course on patent reform.
"The IT industry needs the protection offered by patents to keep developing world-leading IT products. But the system cries out for reform," said Melanie Wyne, CompTIA's director of public policy.
"By clarifying apportionment of damage awards, establishing fair standards for punitive damages, restricting forum shopping and improving patent quality, the entire ecology of the IT industry will better prosper."