Patent Reform is on its way. Maybe not this year, maybe not the next, but inevitably patent reform will happen. The patent reform legislation introduced in 2009 as S.515, has been amended and introduced in the Senate as Amendment to S. 515 (a.k.a. “Patent Reform Act of 2010″). Whether or not it finds its way to enactment is yet to be seen, but here is my brief summary of some of the more relevant sections of the proposed patent reform.
The various proposed reforms include, among other provisions:
- adoption of a “first inventor to file” system rather than the current “first to invent” system
- our first to invent system tends to favor large institutions over independent inventors
- moving to a first inventor to file system brings the US more in line with international patent laws
- additional and improved procedures for public participation in patent examination
- the amendment expands the public’s ability to submit prior art against pending patent applications
- the amendment provides a new post-grant review process whereby the validity of recently issued patents may be challenged
- addition of a supplemental examination procedure to enable patent owners to request review of their patents in light of new issues of patentability
- may be used by a patent owner to strengthen a patent as it is entering litigation
- the process will not absolve those responsible for prior misconduct in front of the USPTO from disciplinary sanctions
- elimination of the best mode requirement (thought to be duplicative of the written description requirement)
Additional provisions relate to: false patent marking issues; venue selection in patent cases; willfulness in the context of patent infringement; and the establishment of a pilot program to develop patent expertise at the district court level.
It will be interesting to see whether the time has come to implement patent reform or whether we will continue to wait as we did with respect to the proposed patent reform in the Patent Reform Act of 2006, the Patent Reform Act of 2007, the Patent Reform Act of 2008, the Patent Reform Act of 2009…
