The Register on the Hatch-Leahy patent reform bill

Of the provision in the Hatch-Leahy bill restricting the award of damages for patent-holders to the value of the contested patent’s unique features – not the economic worth of the infringing product as a whole, The Register mentioned the troll word:

Yes, we’re talking about patent-trolls, folks. The damages limit is meant to lower the incentive to stockpile patents for the sole purpose of litigation, which will increase the public good by ensuring that these government-sanctioned monopolies we know as patents end up in useful products and services, and not just as leverage for suits against the tech companies that actually produce the goods and services.

Of the Kennedy concurring opinion in eBay v. MercExchange: That case contained a concurring opinion by Justice Kennedy highlighting the aforementioned patent-troll dilemma and suggested that courts should look unfavorably on patent-trolls when deciding whether to enjoin patent-infringers from continuing to manufacture goods or employ business systems. Since this was only a concurring, and not a majority, opinion, however, this statement amounts to mere legal dicta (or, in layperson’s terms, “a bunch of hot air”). While some courts may rely on it, it has no guaranteed effect as precedent. Moreover, that case dealt with injunctions, and not the legal damages referred to in the bill. (The former prohibits or compels actions, while the latter deals with money.)

Of first-to-file: The most innovative, and potentially most beneficial, development contained in the Senate bill is the proposed switch to a first-to-file system. In a rare move for the US Senate, the bill would draw the US patent regime in line with, well, every other patent regime on the planet. Moving US law towards congruence with international norms is a new trick for the Senate, but one that should improve the state of the law in this area and move the world a little closer to global patent uniformity.

Right now, the US employs a first-to-invent system for establishing patent priority. The patent code allows a previous inventor to interfere with the issuance of a patent by claiming that they, in fact, invented the subject of the application first. If the first inventor has “abandoned, suppressed or concealed” the subject of the patent, however, he loses his priority. Thus, if an inventor or developer sits on a new invention and does nothing, a subsequent inventor can come along and claim the patent. The subsequent inventor must have come up with the idea on his or her own, though – stolen inventions cannot receive a patent.