On March 4, 2010, a Manager’s Amendment put patent reform back in play in the Senate. Dormant for nearly a year, the bill is nearly identical to that submitted by the Senate Judiciary Committee at that time, except in a few respects. The bill now introduces a new reform in "false patent marking" cases. Such claims will be limited to individuals who have suffered competitive injury. Additional changes have been made to the timing for the proposed, new system to review issued patents "post-grant." The right to immediate appeals of trial court claims interpretation (Markman rulings) has been dropped.
Other familiar elements of reform remain in the bill. In addition to introducing a “first-to-file” system (see article by Damon Thurstonin this newsletter), the location of trials (venue) would be limited to courts which are “clearly more convenient.” On damages, the Senate version maintains a requirement that the courts limit proposed methodologies to those identified by them as relevant. Willful infringement (entitling the patentee to up to three times the amount of actual damages) would include conduct which is objectively reckless by clear and convincing evidence. Reduced fees may be available for persons or entities with fewer than five patent applications. The requirement that the patent set out the best known mode for implementing the invention will no longer provide an available defense if not done.
The bill differs in important respects from the pending House version. However, presumably the Senators managing the bill have been in close consultation with their House counterparts in seeking to revive work on the legislation, or they would not be so optimistic in resurrecting the effort.
The likely crucial test will be whether this bill gets scheduled for debate and voting on the Senate floor in the next couple of months. If not, patent reform may continue to elude us all for some time to come.