Patent Reform Update: Senate to Vote on Patent Reform Today

Early this evening, the Senate will vote on a cloture motion to preclude further debate on H.R. 1249. The vote can be viewed on C-span. While there are differences with H.R. 1249 and S.23, (see Patent Reform, Close Enough For Government Work?) most notably concerns over fee diversion, the Senate intends to adopt the House bill.  Check out below what the patent community is saying about tonight’s expected vote:

1. Patent Reform: Post Grant Review Musings (IPWatchdog)

2. Patent Reform: Final Countdown (Patents Post-Grant)

3. Congress Returns, Prepares To Fight Over Jobs, Tax Cuts, Patent Reform, Trade Deals, FAA Funding And More (People Unlike Us)

4.  Patent Reform 2011 Survey Results ( PatentlyO)

5.  Patent Reform Faces Final Hurdles in Senate (National Journal)

6.  Senate Cloture Vote on H.R. 1249 Scheduled for Tuesday (Patent Docs)

7.  Pressing the Patent Reform Panic Button ( Pharma Patents)

8. First To File v. First To Invent, By Abrams & Wagner (The Conglomerate)

9. Senate Set To Vote Yes On Patent Reform Bill (Law 360)

 

 

Is Post-Grant Patent Review Coming to the Retail Industry?

R. David Donoghue, Partner at Holland & Knight and Practice Center Contributor, recently launched the Retail Patent Litigation blog.  In describing the blog, Donoghue writes, “Though patent litigation is relatively new to many retailers, it is a significant and growing concern for all retailers, as well as the members of the retail supply chain.  Retail Patent Litigation is a guide to help retailers understand patent litigation and how to effectively and creatively drive their individual cases to positive resolution.”  In this article, he discusses how patent reform may impact the retail industry.

As patent reform looks increasingly likely, the retail industry is beginning to look at how patent reform will impact the retail supply chain. Earlier this week, the National Retail Foundation (“NRF”)wrote to Congress supporting Section 18 of H.R. 1249 which creates a post-grant, adversary proceeding for challenging the validity of patents at the Patent Office. The NRF advocates for Section 18 as a cost-effective alternative to costly patent litigation. While post-grant review (like inter partes reexams) would likely be cheaper than district court patent litigation, Section 18 has significant draw backs. (more…)

What’s Wrong with Reexamination and How to Make it Better

Gene Quinn, of IPWatchdog and Practice Center Contributor, sent in this article discussing why reexamination should absolutely be considered when there is a strong case of invalidity that is built upon prior patents or publications and what the Patent Office is doing now with respect to reexamination.

Reexamination is a low-cost but seldom used alternative to litigation for determining the patentability of the claims in an issued patent. Despite what I write below, I am a fan of reexamination and I think that the fears associated with the process are largely unfounded.  Reexamination could and should be used more often than it is, and if you are a defendant in an ongoing patent infringement litigation and you are not simultaneously involved in bringing a reexamination you need to ask yourself why not!

Yes, the reexamination process is slow.  Yes, the reexamination process doesn’t work as well as it could or should.  Yes, reexamination it adds extra cost.  But the statistics don’t lie.  In the right case reexamination is extremely effective.  Unfortunately, some patent litigators counsel clients to steer clear of reexamination.  This may be good advice, or it might just be because the litigator isn’t familiar with reexamination, or in some cases because you recommend what you know and do.  The old saying — if you are a hammer all the world looks like a nail — comes to mind.  So despite what follows relating to how Congress could and should make reexamination better, if you are on the wrong side of a patent infringement litigation you really should get some impartial advice about the pros and cons of pursuing a reexamination strategy before writing it off as a bad idea.

Click here to read the full IPWatchdog publication.