Bits and Bytes No. 101: Patent Bill & the Patent Lobby

• Reform: Today, the Senate Judiciary Committee met shortly and announced that an agreement is "close" on all of the controversial issues and that the compromise will result in a major overhaul of S. 515. Gene Quinn has instant-comments. Potential changes include: (1) codifying the existing law of damages rather than changing it – except that a judicial check on jury-awarded damages would be added; (2) eliminate "best mode" as a ground for invalidating a patent; (3) lowering the standard for post grant review to an "interesting question" rather than a "substantial new question of patentability." We should see some language this week.
• Reform: A reader sent me the following points on the potential agreed-to compromise Bill in the Senate:
  • Damages. The amendment will strike the contentious calculation of reasonable royalty damages provision and will replace it with the gatekeeper language developed by Senators Feinstein and Specter, which will provide more of a role for the judge to identify the appropriate legal standards and relevant factual contentions for the jury.
  • Inter partes reexamination. The amendment will strike the controversial "in public use or on sale" additions on inter partes reexamination.
  • Best mode. The amendment will retain the requirement that a specification contain the best mode of carrying out the invention as part of the patent application, but not allow best mode to be used as means to invalidate a patent.
  • Interlocutory appeals. The amendment will tighten the interlocutory appeals provision. The bill as introduced would have given the district court complete discretion whether to approve an application for interlocutory appeal of a claims construction hearing. This amendment will provide district court with specific standards that it must certify have been met.
  • Willfulness. The amendment tightens the willfulness provision to ensure is in line with the Federal Circuit's decision in Seagate.
  • Venue. The amendment will strike the current subsection on venue, and replace it with a codification of the Federal Circuit's recent decision in TS Tech.
• Lobby Lobby: The IPO reports that "by early afternoon yesterday, 16 paid 'line sitters' were already in line in the corridor outside the [committee] room, holding places for lobbyists to be admitted to the room this morning."
• Patent Jobs: The Patently-O Job board has picked-up some steam over the past week. Here are some recent job postings.
  • Patent Attorney - Law Firm - Chicago, Ill. (Amin Hallihan looking for someone in Chem/Pharma)
  • Patent Attorney/Agent - Small Corporation - Gaithersburg, Md. (Wellstat Management looking for in house patent counsel)
  • Patent Attorneys - Law Firm - Detroit, Mich. (Warner Norcross looking for new patent attorneys in their Michigan offices)
  • Patent Attorney/Agent - Small Corporation - Yoqneam, Israel (Given Imaging needs in-house patent counsel now)
  • Patent Attorney - Law Firm - Rockville, Md. (Edell Shapiro needs EE/Physics patent prosecutor)
  • Patent Agent - Law Firm - Alexandria, Va. (Buchanan Ingersoll is looking for a Materials Science / ChemE patent agent)