In today's executive business meeting, the Senate Judiciary Committee adopted the latest proposed amendment to the Senate's 2009 Patent Reform Act. The Committee then voted the bill to the floor as amended. The amendment made the following modifications to controversial sections of proposed Senate Bill 515:
(a) Damages - Creation of a gatekeeper function for courts to determine whether evidence is legally sufficient before it reaches a jury;
(b) Willfulness - Movement toward codifying the standard set forth in In re Seagate, it also provides specific factors that can serve as evidence of an "informed good faith belief";
(c) Post-grant review - Removal of the specific inclusion of prior art that was in "public use or sale in the United States" as allowable prior art in these proceedings;
(d) Venue - Codification of the In re T.S. Tech standard, which requires transfer when the "transferee venue is clearly more convenient" than the current venue;
(e) Interlocutory appeal after claim construction - A district court may certify an interlocutory appeal only when an appeal will either "materially advance" the termination of the litigation or "likely control the outcome of the case";
(f) Best mode - Removal of failure to disclose the best mode as a basis for finding a patent invalid; and
(g) Pilot Program - Allow judges to request or refuse patent cases.
To view the actual amendment click here.
There was heated discussion of provisions regarding inequitable conduct. This discussion surrounded whether there would be consideration of possible amendment to specifically address the inequitable conduct concerns. As to this issue, Senator Hatch stated that: "Our patent system must reward innovators with high-quality patents and a level of certainty during the patent process. We cannot let non-innovators keep us from creating a strong and vibrant environment for innovation and entrepreneurship that will carry this country long into the 21st Century." Notably, Senator Hatch (originally a strong proponent of the bill and co-sponsor) no longer supports this bill because he felt that the amended bill does not address the issues that it originally set forth to accomplish, saying: "For years now, I have worked long and hard in pushing patent reform legislation. My primary purpose for doing this bill was to improve patent quality and limit unnecessary and counterproductive litigation costs. I do not believe the bill, in its current form, accomplishes these goals."