Is There Light at the End of the Patent Reform Tunnel?
The House of Representatives passed The Patent Reform Act of
2005, er
2006, er 2007 (
H.R. 1908) on September 7, 2007 with little debate and less fanfare. Given the focus of much of the act, it might be better named The Patent Litigation Reform Act. With a few notable exceptions, the focus of the act seems to be to rein the supposed excesses of patentees, the patent plaintiff's bar, the federal courts, and the patent office. The proponents' arguments can be summarized in the assertion that the patent office is issuing too many bad patents, the courts aren't invalidating enough of the bad patents that are being asserted, and patent "trolls" have too many advantages in litigation.
The complaints of patent infringement defendants notwithstanding, the courts have addressed many of the problems in the system and all indications are that the Supreme Court is interested in doing more. More specifically, the Supreme Court affirmed the Court of Appeals for the Federal Circuit ("CAFC") in Markman v. Westview Instruments Inc., placing the determination of the scope of a patent claim solely in the hands of the court rather than the jury. In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., the Supreme Court placed such strict limits on the doctrine of equivalents that it is rarely available to any meaningful degree. The Supreme Court also addressed the current popular "Boogey man," injunctive relief, in eBay Inc. v. MercExchange LLC, the Court rejected the CAFC position that patent infringement presumptively causes irreparable harm leading to injunctive relief being routinely granted. The influence of this decision can be seen in the CAFC's opinion in Paice v. Toyota, which imposed "ongoing royalty" payments for future infringement rather than enjoin the infringement. Finally, the Supreme Court's recent opinion in KSR International Co. v. Teleflex Inc. may be its most significant patent opinion in the last 25 years. That case made it much easier for defendants to have patents declared invalid as obvious. The CAFC also addressed the problem of treble damages for willful infringement by changing the standard for willfulness from a duty of due care to avoid infringement to a much higher standard, whether the defendant was objectively unreasonable. Moreover, the Court initially granted certiorari in Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. in order to address the scope of patentable subject matter. Although the grant of certiorari was later withdrawn presumably because this issue had not been raised or argued at trial or to the CAFC, it shows the Court's inclination to take on the matter once the proper opportunity arises.
Despite the courts' demonstrated ability to manage patent infringement litigation using current law, the Patent Reform Act of 2007 contains several provisions seemingly designed to weaken patents.
The Senate, fortunately, has yet to follow the House's action and it is unclear if or when it might do so. Reportedly, a majority of senators would vote for the act (
S. 1145), but not quite enough for the supermajority (60) needed to vote for cloture.
There is light ahead for the patent community, but it may be an oncoming train rather than the end of the tunnel.
Copyright © 2007 Scott R. Cleere