While patent reform legislation stalls in Congress, infringement lawsuits continue to pile up like cordwood in the technology sector. Since the House approved a version of patent reform that was strongly supported by the technology industry Sept. 7, Apple, Gateway, Hewlett-Packard and Intel have all been sued for infringement.
Search giant Google is the latest under attack. According to a Nov. 6 lawsuit filed by Northeastern University in Boston and Jarg, a startup founded by a Northeastern professor, Google is infringing on a 1997 patent that allegedly covers Googles core search technology. Northeastern owns the patent and Jarg, based in Waltham, Mass., is the exclusive licensee, according to the suit.
The school and the startup are seeking a jury trial, an injunction, damages and royalty payments. The lawsuit was filed in the Eastern District of Texas, where neither Northeastern nor Jarg do business. The court is known as the "rocket docket," for its swift prosecution of infringement lawsuits and a track record of favoring plaintiffs.
Under the House version of the Patent Reform Act of 2007, such forum shopping would be prohibited. The bill would also narrow the definition of willful infringement and limits infringement damage awards to the actual value of the technology involved instead of the overall value of the a completed product.
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In addition, the legislation would also create a "second window" to challenge patents issued by the Patent and Trademark Office, and create a first-inventor-to-file system to replace the current first-to-invent standard, moving the United States closer to international standards.
A similar version of the bill has won approval in the Senate Judiciary Committee, but the hopes of patent reform proponents that the bill would reach the Senate floor by the end of the year now appear remote. Senate lawmakers seem more intent on wrapping up budget bills and heading home for the holidays.
The bills lack of momentum in the Senate is also attributable to growing opposition from the biotech, manufacturing and pharmaceutical industries.
"No compelling case has been made for a bill written in this fashion. It is based on claims of a crisis in the current patent system that does not exist, supported by selective assertions which do not hold up under scrutiny," states an Oct. 23 letter to Senate leaders signed by more than 400 organizations, in fields ranging from biotech to grocery stores. "We believe the authors of the legislation must make fundamental changes to the legislation if it is to work for all American innovators."
The Coalition for 21st Century Reform, which represents manufacturers and pharmaceutical companies, claims the current version of patent reform favors infringers over inventors. "[The United States is] sending an international message that patented American technology may now be copied with little or no consequence," the group said in a Sept. 7 statement. "This is the wrong time to send this message."
Opponents all claim they support some form of patent reform, but the current legislation is lacking. "Some of the proposed reform provisions, such as an expanded apportionment of damages, [and] an indefinite post-grant opposition process … pose serious negative consequences for continued innovation and American technological leadership in a competitive global economy," the Oct. 23 letter to the Senate states.
Even the supporters of patent reform admit the bill needs more work before it will win Senate approval.
"We admit this bill isnt perfect," Rep. Howard Berman, D.-Calif., a co-author of the House legislation and chairman of the House Courts, Internet and Intellectual Property Subcommittee, said after the House bill passed, 225-175. "This is really complicated stuff. We will continue to work for compromise."
Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee, also called the bill a work in progress. "We made changes to accommodate the minority side and it wont be final until we come out of conference [with the Senate]."