Wednesday, September 12, 2007

Further commentary on HR 1908: it's about damages

Grant Gross of IDG emphasized the "damages" aspect in discussing the passage of HR 1908:

The House bill, supported by several large tech vendors, would tighten the way courts assess patent infringement damages and add a new way to challenge patents after they've been granted. Currently, courts generally consider the value of the entire product when a small piece of the product infringes a patent; the bill would allow courts to base damages only on the value of the infringing piece. (...) Supporters of the bill argue it's needed because the number of patent infringement lawsuits and size of awards have exploded in recent years. It's too easy for patent holders to sue and collect huge damage awards when a small piece of a tech product is found to infringe, supporters argue.

Gross touches on the post-grant review provisions of HR 1908:

While the bill would make "sweeping changes" in the way patents are prosecuted and whether they are litigated, the bill's post-grant review provision targets the wrong point of the patent-issuing process, she [Bobbie Wilson] said.

"That's kind of like closing the barn after the horse is gone," she said. "Most of the problem is with bad patents."

IPBiz has noted the irony in advocates of "patent quality" ignoring the basic precepts of Deming in their approach to "patent reform." If there is a problem in examination, one should fix the examination process, not add an inspection step (here, post-grant review). Adding an inspection step when there are known problems in the production step (here, examination) is counter to the teachings of Deming.

The Register included the following commentary on HR 1908:

The bill was passed by just 220 votes to 175 with Democrats largely backing it. The 60 Republicans who voted for the bill were almost cancelled out by the 58 Democrats who crossed the floor and voted against it.

Innovation Alliance is a lobby group which represents smaller technology companies such as InterDigital and Qualcomm. It says that the new law could end up costing small businesses and universities money. Spokeswoman Susan Mora said that it was not acceptable to change the law "so patent infringers can reduce their supposedly soaring litigation costs".

The pharmaceutical industry, which earns its money through licences from drugs it invents, has opposed the change and said that it has been motivated by sector-specific concerns from large software publishers.

There are said to be concerns in the White House about the fact that the new law limits a judge's discretion in awarding patent violation damages. Even if passed by the Senate the law could be blocked by a veto from US President George W Bush.

Details of the vote on HR 1908 may be found at


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