Thursday, September 15, 2005

Initial reports on hearings about HR 2795 on Sept. 15

ZDNet reported that notably absent in the latest drafts of HR 2795 is the "second window" provision [for patent oppositions] that would have established a system for challenging patents virtually any time after they're granted.

ZDNet also reported that Lamar Smith asked the panelists testifying on Sept. 15 to focus on the idea of damage apportionment--that is, how to allocate monetary awards to patent holders when infringement has been found. On that topic, software, pharmaceutical and biotech interests continue to clash. A late-July amendment of Smith's bill meets the proportional value standard, Simon said, but the language of the latest version of that amendment, circulated on Sept. 1, raises the possibility that patentees could claim damages based on the value of the entire product.

The initial ZDNet report did not mention the injunction issue.

AP reported that the court order provision [presumably meaning the injunction provision of the June 05 version of HR 2795] was dropped from versions of Smith's bill considered at Thursday's hearing, and so were other measures BIO and PhRMA didn't like, including one to give companies accused of infringing a patent the chance to challenge the basis for that patent [presumably meaning the second window of the patent opposition mechanism].

AP also reported there still are some provisions left that high-tech firms were seeking. Patents would be easier to challenge after being issued [presumably the first window of the opposition], and in place of the court-order provision is a measure making it easier for companies to defend patent-infringement lawsuits in a favorable venue [something new?].

AP also quoted Howard Berman: "We have a bill which to my way of thinking has stripped out very significant reforms."

AP report:

Although first-to-file was not questioned on Thursday, the witnesses testifying on Thursday are not adverse to first-to-file. Universities and small inventor groups might be adverse to first-to-file, but they were not represented on Thursday.


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