Patent Reform Watch: Tentative Agreement in Principle Reached on Patent Reform Legislation


On February 25, 2010, Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, announced a tentative agreement with Sen. Jeff Sessions (R-AL) on patent reform legislation (Leahy, S. 515, The Patent Reform Act of 2009).  Sen. Leahy stated that the Senate Judiciary Committee was close to a compromise that would address issues of patent quality at the United States Patent and Trademark Office (USPTO) and "runaway" damage awards, while preserving "the core of the compromise struck in committee last year."  He noted that Sen. Hatch (R-UT) and Sen. Kyl (R-AZ) as well as Director Kappos of the USPTO have been instrumental in helping reach the present compromise.  Further details regarding the agreement are expected in the coming days.

A key bone of contention in previous versions of the bill has been the apportionment of damages based on the value that a patented invention brings to a product.  Critics in the House of Representatives have also questioned the need for an administrative post-grant review or changes to the present system of inter partes re-examination.  Further, it remains to be seen whether the agreement preserves a provision for interlocutory appeals of claim constructions.

Passage of the bill is still far from certain; however, with this tentative agreement in place, some degree of reform within the year is now a more distinct possibility.