Senators Hatch & Leahy introduced their long-expected patent reform bill yesterday. Patent guru Harold Wegner summed up the state of play for his email list:

Several colleagues active in patent legislation have passed along information about the new Senate bill: The major leaders in the patent reform movement have reached agreement on a significant compromise patent reform bill that Senator Hatch has introduced on his behalf together with Senator Leahy. . . . .

The legislation includes many important features that should receive the support of the great majority of the patent community. Yet, there will be some "losers" if this legislation passes – which could very well lead to a procedural tangle that would block a final Senate vote.

It remains to be seen whether the academic community and individual inventors have agreed with this legislation – and, if not, whether they have the political muscle to block the bill.

The biggest enemy of enactment is time: Congress has only a scant number of legislative days remaining in the 109th Congress, once it returns from recess on September 5th. Both the Senate and the House will need to enact identical legislation, and roadblocks could very well emerge in either body that would fatally slow the legislation and permit it to die.

Should the legislation die, then the 110th Congress (2007-2008) would start on a fresh slate.

From Hatch's introductory statement:

While there appears to be a high degree of consensus on some issues relating to patent reform – such as the advisability of creating a new post-grant review process, there are significant disagreements about other changes to the patent system and about how best to streamline patent litigation.

By all accounts, patent litigation has become a significant problem in some industries. There are a number of factors in patent law that drive up the cost and uncertainty of litigation in ways that are unjustified. However, some of the principal problems and costs associated with patent litigation are not uniform across industrial sectors. This has led to substantial and sometimes vociferous disagreements about the nature of the underlying problems and, thus, what the appropriate solutions might be. We have done our best to resolve these disagreements based on our judgment about what is likely to preserve a balance between patent holders and alleged infringers in these actions.

There is also substantial consensus regarding a number of basic, structural changes to the patent system. The most significant of these involves moving from our current first-to-invent system to something approximating a first-to-file rule in determining which of two conflicting inventors has the right to obtain a patent.

While there is general agreement regarding some of the changes necessary to move toward a first-to-file system, there are some disagreements that remain unresolved by the current language of this bill. Although we have done our best to preserve many of the principles defining what constitutes “prior art” under current law, patent experts continue to disagree over whether we have achieved this goal.

posted by James DeLong @ 9:52 AM | Patents

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