Howdy, folks. It’s the Old Sage again. Bet you didn’t figger on hearin’ from me again. What with the Patent Re-Form Act bein’ shot out of the saddle last year, and all. But wouldn’cha know. They’re back at it again. Them Congressationalists re-filed their re-form act for another go!
Now, Ryan Trunck is writin’ all about it in this issue. So I won’t steal all the chaw outta his cheeks.
But I will say this. What with two million people losin’ jobs since Thanksgivin’, foreclosures, stimulizin’ budgets, AIG bonuses, and Steve Wozniak survivin’ the first round ‘a “Dancin’ With the Stars,” you’d reckon the Congressationalists would have their hands full. Guess not. Not if you’re on the Judicialist Committee, that is. Musta felt left outta the fun.
You think financial derivatives are complicated? Wait’ll a judge holds a hearing on apportionment under this bill. They want a judge to take part of the damages calc’lation out of the hands of the jury. The judge’ll have to hold a separate hearing or make a special ruling at trial, before a jury decides on damages. See if y’all can follow:
First, the judge hast’a parse out what the future profits woulda been for the defendant, as if that defendant was plannin’ the amount of those profits when infringement began (you know, like two years before trial). Then, the judge is s’posed to pretend the defendant was a willing licensee, agreein’ to pay a royalty (which a’course it wasn’t, or we wouldn’t have a trial). Then, the judge hast’a decide what contributions other folks made to the profits, by their prior inventions. (Besta luck on that. “Let’s see. I think the Glaubsch patent of 1984 was 7% responsible for the profits, 19% came from the Doolittle patent, and the rest from the patent in this here lawsuit.”) After that, this bill’ll make the judge cut out all the profits which were based on those inventions that are not the patentee’s invention.
And then it goes back to the jury. But before they can f’gure out what the royalty damages should be, they still have to lookit everything else that should adjust the figure. Like custom for royalties in the industry, additional sales of bundled products and such.
Now, I’m OK with some things. But not with fixin’ what ain’t broke. ‘Specially if it won’t work and costs a passel. So, I looked at a letter the Chief Judge of the Federal Circuit sent to the senators. He said their changes on apportionment of royalty damages and pre-trial appeals will clog up the courts, ain’t needed and’ll make trials last a couple weeks longer. That was good enuf for me. And since apportionment is already a factor the jury is allowed to consider under the current law, seems like this is a whole lot’ta trouble for nuthin’.