The ink was barely dry on the patent reform bill that was approved by the House of Representatives on Sept. 7 when speculation began over the fate of the legislation in the Senate, where stiff opposition awaits key provisions long sought by the technology sector.
As Roger Cochetti, group director of U.S. public policy at CompTIA (Computing Technology Industry Association), told eWEEK on Sept. 4, "The showdown will be in the Senate."
With the Senate very tentatively set to debate the bill in late October, opponents have at least six weeks to mount their campaign to change the language in the House legislation, including the linchpin provisions most sought by tech: limiting damages in infringement lawsuits.
"[The bill] prohibits excessive damage awards," Rep. Bob Goodlatte, R-VA, said during Fridays floor debate. "Believe it or not, there is no current requirement that damage awards in patent cases be limited to the value the patent added to the overall product. The courts have created a virtual free-for-all in this area."
The House version, H.R. 1908: the Patent Reform Act of 2007, limits damages to the actual value of the infringed technology, not the entire product containing the contested patent. In addition, the bill limits the definition of willful infringement, which can bring treble damages.
The House bill would also roll back the time for calculating when infringement begins from the current patent filing date to when the invention was actually made.
"In most cases, that would devalue the invention. Many patents become much more valuable years later," Phil Johnson, chief patent counsel for Johnson & Johnson (no relation to the company founders family), said from Brunswick, N.J. "If you were selling your house, you wouldnt want to value it based on the day it was built. Instead, youd calculate all the improvements you made to your house."
Click here to read more about the patent reform bill approved by the House of Representatives.
Johnson, speaking on behalf of the Coalition for 21st Century Patent Reform, which has questioned many of the provisions in the Patent Reform Act of 2007, said companies like Johnson & Johnson are not opposed to patent reform, per se.
"I think everyone agrees the patent system can be improved," he said. "But we dont want to see changes that will hurt innovation in this country. The problem is with damages. After all, its the penalty for infringement."
Johnson stressed that the House made improvements to the bill that will lessen opposition, particularly in the area of opening a "second window" to oppose patents issued by the government. When first approved by the House Judiciary Committee, the bill would have allowed for opposition over the full life of the patent.
The House ultimately changed the language for challenges to issued patents. "Now its limited to one full blown challenge and then challenges will be limited," Johnson said. "It is much more streamlined now. We were afraid inventors would be harassed continually."
House leaders also promised lawmakers reluctant to vote for the bill further changes would likely be made in the legislation. "This is a work in progress," Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee, assured House members. We continue to operate in good faith. We continue even now continue to listen to the parties in other ways to continue to enhance the bill."
According to Johnson, those changes will be decisive to getting the bill out of the Senate.
"My understanding is that there needs to be substantial movement in the Senate or the votes wont be there," he said. "There may not be enough floor time if its a contentious debate."
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