Starting from the premise that legislation can raise the quality of patents, Leahy/Hatch/Grassley are poised to introduce this year’s version of Patent Reform. The proposed reforms are extensive, and most have been debated at length. Although the Summary ends by listing supporters of the Act including BIO, IPO, AUTM , AIPLA and several big universities, I still worry that we are “going to Abilene.” In that fable, one member of a country family offhandedly suggests going on a long dusty drive into town on a hot Sunday. Although almost no one really wants to go, instead of just saying so, each one throws out a thought – we could go to a movie, or get ice cream, or visit old Aunt Ida – until, before they know it, they are all in the car and on the way to Abilene, a place no one really wanted to go in the first place.
The Summary of the Reform Act gives me that impression. If it passes, and it may well this time around, not only will patent applications be attackable during prosecution –anyone will be able to send in prior art and comment on it, but there will also be a nine-month period for opposition following issuance, as well as a streamlined inter partes opposition procedure that will be conducted by a panel of three administrative law judges and permit direct appeal to the Federal Circuit. Opposers must show a reasonable likelihood of success and will be estopped from relitigating issues that reasonably could have been raised during inter partes review that they instituted. Have such standards ever been articulated clearly? There will also be a ”supplemental examination process” to help applicants fix flawed patents. (I have not have time to read this, but isn’t this called reissue?) By the way, the PTO Director can set fees, but must start out by cutting fees paid by small entities and “micro-entities.”
However, even if an applicant operating under a first-to-file system (yes, Red Riding Hood, that Big Bad Wolf is back too) gets his/her “high quality patent” through an obstacle course that could be used on the show “Wipeout,” enforcement will not be a picnic. Courts are supposed to evaluate the “legal basis for specific damages theories,” willful infringement will be harder to prove, and enhanced damages harder to obtain. Well, I can’t wait to cuddle up on the sofa on a cold Saturday and start into this 99 page thriller!