More Patent Reform News

• Chief Judge Michel's new letter to the Senate (link) - Judge Michel expounds on his concerns over mandatory interlocutory appeals, and apportionment of damages. In the latest letter, Judge Michel offers some alternatives:

[T]he third avenue of [interlocutory] appeal could be limited to cases in which, despite the absence of a grant of summary judgment, the trial court determines that claim construction will likely control the verdict on infringement. Under such a provision, the number of interlocutory appeals on this third avenue would, I expect, be far fewer than under the provision as currently drafted.

With regard to Section 5, on apportionment of damages when calculated as a reasonable royalty, the current language requires the court to conduct a massive macroeconomic analysis. The analysis requires determining the economic value of all prior art technology and the economic value of everything in the accused product or process not attributable to the asserted patent . . . Perhaps the Committee would consider making this analysis discretionary with the court so that it could be limited to those cases where it might be truly necessary. A second alteration would be to require the accused infringer to establish a basis by submitting sufficient evidence before the undertaking would occur.

• More than 200 organizations signed a letter similarly opposing the apportionment of damages provision, and also opposing the "second window" provision and the expanded rulemaking authority for the USPTO. The letter can be viewed/downloaded here (link)

• Senator Kennedy admitted recently that Congress is having problems grappling with the esoteric issues of patent law. "All of us are generalists, we're elected as generalists, and this is an enormously technical issue," Kennedy said. He also remarked that the biotech and high-tech sectors should work out differences by themselves -- otherwise, "it comes down to who has more lobbyists."

• In a bit of a twist, Democratic presidential candidate and former Sen. John Edwards (N.C.) on Thursday in Detroit offered details of his universal health care proposal, which included overhauling the patent process for breakthrough pharmaceuticals. His proposal will explore the possibilities of offering "prizes" for breakthrough discoveries. From Edwards' website (link):

Edwards will convene an expert panel to explore whether there are certain key disorders where prizes for breakthroughs – as an alternative to patent monopolies—would offer new incentives to researchers, guaranteed gains to companies, and lower costs to patients. Prizes would supplement, but not replace, the current patent system.