Another shot at patent reform in the USA

There is an old saying that goes something (almost exactly) like this, “If at first you do not succeed, try try again”.

And such is the case for patent reform in the USA. After several attempts at omnibus reform, legislators in the USA have introduced a bill that has bi-partisan support from both the Democrats and the Republicans as well as support from some industry heavy weights.

Among the notable goals of the bill are the following reforms:

- Improving the patent system by putting in place mechanisms aimed at reducing or eliminating weak or obvious patents.

- Attempting to bring the USA patent system in line with those of other jurisdictions to a “first to file” system as opposed to a “first to invent” system (being sometimes difficult to prove as you can imagine).

- Attempting to deal with situations such as that which RIM faced last year by constraining courts to damage awards based on the patent's “specific contribution over the prior art” (prior art being previously disclosed inventions/ideas). It will go further and increase the burden of proof with respect to whether patent infringement is considered "willful"--a determination that results in tripling the damage award.

- Allowing patents to be challenged within a year of their issuance through a special "post-grant review" process, consisting of a special board within the USA Patent Office, in an effort to provide an alternative for litigation. It would also restrict the scope of the court districts in which patent infringement cases could be filed (there is one particular judge in one particular district in the State of Texas where patent holders like to sue because of the generally favourable treatment they get – just ask Nortel Networks which just lost a patent infringement case there).

- Creating a system by which third parties can submit prior art.

As with any piece of legislation, this one has its detractors and it remains to be seen how much of the bill (if any part of it) will make it onto the books as law. However, the effort seems to have support and would, notwithstanding its drawbacks, significantly improve on the current system. Stay tuned for more developments.