Patent Law

Reaction to Reaction

By Gary Odom and Jordan Kuhn

Last week, in reaction to the 2007 Patent Deform Act being stalled, the Coalition for Patent Fairness (CPF) signaled false compromise. Now, defenders of patent sensibility react. From the Coalition for 21st Century Patent Reform -

"This proposed language from the Coalition for Patent Fairness does nothing to move patent reform closer to adoption. CPF's proposed damages language is merely a restatement of the "prior art subtraction" language that the Senate Judiciary Committee report has already recognized as deficient. As with the earlier language, it would result in a wholesale reduction in the value of damages awarded to inventors whose patents are infringed. This language would give a green light to would-be copyists, especially those in low labor cost countries, who will quickly realize that that they can knock off patented American technology with little or no fear of retribution. The end result of this proposal is that the incentive for innovation is dramatically reduced at the cost of thousands of American jobs and the loss of our leadership in life saving research and ingenuity."

The Innovation Alliance get in their two cents. A digest -

We are particularly concerned about a "compromise" proposed yesterday by the Coalition for Patent Fairness. This proposal is the first attempt by the CPF to offer alternative language to address the chorus of concerns over the Act, and yet it is anything but a compromise. In fact, the proposal would actually make the Patent Reform Act more controversial, more favorable to the technology and financial services companies who already support the bill, and less favorable for the entire rest of the patent stakeholder community.

First, the CPF's proposed damages language currently in circulation would mandate that the controversial damages apportionment formula be applied in all cases and remove the court's discretion to apply it if and when appropriate. Second, the proposal requests a re-introduction of the controversial prior-user rights concept, which would allow a technology user to avoid liability for infringement by keeping the prior use of its technologies secret. Third, the proposal expands the controversial post-grant review process by allowing the previously mentioned prior-use concept to be used as a means to invalidate a properly granted patent. This is an unprecedented expansion of the means to invalidate a patent and a direct affront on the very tenets of the nation's patent laws.

Full post as published by The Patent Prospector on March 11, 2008 (boomark / email).