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Uh Oh - US Patent "Reform" Alert-- by Marbux
Wednesday, April 20 2005 @ 12:49 PM EDT

Marbux has been following patent developments in the US. Note that a House of Representatives Committee on the Judiciary hearing on "patent quality improvement" will be webcast live this afternoon at 4:30 EDT. As you know, Groklaw is neutral as to politics, but I know many of you will be interested in this news. Here is his report.


A U.S. House of Representatives committee will hold its first hearing today on proposed patent legislation. A live webcast is scheduled for 4:30 p.m. (EDT) for the hearing to be convened by the Subcommittee on Courts, the Internet, and Intellectual Property of the House Committee on the Judiciary. A related hearing is scheduled before a Senate committee on April 21, but is expected to be postponed until April 25.

The draft legislation appears to have the potential if enacted to mark the first time Congress has approved of software patents. The legislation is intended in part to overrule portions of the decision in Eolas v. Microsoft (PDF), decided last month by the Federal Circuit Court of Appeals.

That case was a software patent case, and it is likely that the decision will be discussed as part of the "legislative history" of the bill, if enacted. That legislative history could lead to a later judicial decision that Congress approved of software patents by enacting the proposed legislation. (The U.S. Supreme Court has previously ruled that whether software patents should be available must be decided by Congress.)

The legislative proposal (PDF) has not yet been formally introduced, but has been circulating the last few days. A team of lawyers has begun summarizing various provisions at Patently-O, a patent law blog. Its outline as of April 17, with individual topics hyperlinked on the blog to explanatory posts, is as follows:

* Creating a post-grant opposition procedures;

* Willfulness: Increased damages may not be awarded based merely on the knowledge of a patent or its contents;

* Taking away the clear right for an injunction for infringing activity;

* First-to-file (rather than first-to-invent) rights;

* Expanded definitions of prior art;

* Assignee may file for the application and be granted a patent (rather than the inventor);

* Elimination of the best mode requirement;

* Changes to the duty of candor and unenforceability;

* Damages: when invention is a portion of a larger product, royalties are only calculated for a portion of the product;

* Publication of all patent applications after 18 months;

* Prior user rights;

* Overruling Microsoft v. Eolas -- component must be tangible;

* and more.

See generally, Patent-O for current details. (We're still looking for further resources on the legislation, so check back here later for further links.)

The proposed patent legislation apparently originated in large part with the Business Software Alliance ("BSA"), a trade organization for several large software companies including Microsoft, HP, and IBM. In January of this year, the BSA issued a report, Intellectual Property in the 21st Century (PDF), describing its goals for patents and copyright legislation. See also later short document summarizing the BSA goals.

The BSA folk let no moss grow on their feet. On February 10, they met with key national leaders. High Tech CTOs Meet with Hill Leaders, White House Officials (BSA press release).

One week later, Senate Majority Leader Bill Frist appointed Senator Orrin Hatch to the Senate Republican High Tech Task Force for the 109th Congress. Hatch Tapped for High-Tech Task Force, press release (February 17, 2005). According to the press release, "[t]he Task Force includes 14 Republican Senators and will help form legislation on a wide variety of issues that affect high technology industries, including intellectual property[.]"

On March 17, a new Senate subcommittee of the Committee on the Judiciary was established with jurisdiction over patent law, the Subcommittee on Intellectual Property. Senator Hatch was appointed as its chairman. "Hatch to Head Senate Panel on Copyright, by David McGuire, Washington Post. According to a press release issued the same day by the office of the new subcommittee chairman's office:

"I have an aggressive agenda for this subcommittee, starting with comprehensive patent reform," Hatch said. "We need strong patent protection to give incentives for innovation and economic growth."

Over the next few weeks, Hatch and Sen. Patrick Leahy (D-Vt.), the subcommittee's ranking minority member, intend to initiate a series of hearings on patent reform with the objective of developing any necessary and appropriate legislation. The issues Hatch would like to address include increasing the quality of patent reviews, considering new post-grant opposition procedures, and shoring up the long-term resources of the Patent and Trademark Office.

Given that background, one might suspect that a strong lobbying effort by software patent opponents may be necessary to overcome the legislative initiative.

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