IP Mavens - take a glance across the Atlantic for some interesting patent developments

There really is some interesting stuff going on in relation to patent at the moment, over in the US. And it's all being tracked on the Promote the Progress blog.

A patent reform movement hs been building for some time. For a more complete 'primer' on patent reform in the US, I highly recommend this primer from J Matt Buchanan on the Promote the Progress Blog. The movement got a big kick in the pants from three recent 'events' or developments:

• in 2003, the Federal Trade Commission issued its report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy. The report made 10 recommendations for reform, including the introduction of an opposition procedure, reducing the presumption of validity in the courts to a 'balance of probabilities' test, and limiting the award of treble damages in patent;
• in 2004, the National Academies in the US issued their report on patent and patent reform, called A Patent System for the 21st Century. It, too, made a number of recommendations, including again, the introduction of an opposition procedure, the 're-invigoration' of the non-obviousness standard, and the introduction of a research exception;
• last year also, Jaffee and Lerner published their book, Innovation and its Discontents on how to fix the patent system

Now, this year, action appears to have moved, in a very real way, to Congress. A few key reforms are being proposed in a draft bill which has been issued for discussion (pdf). It includes:

• the introduction of a first (inventor) to file system;
• potential limits on the availability of injunctions;
• post-grant review (ie opposition) procedures

And a whole bunch of other things. Now, a bunch of Centrist Democrats have apparently voiced their support for reform efforts, in a letter (pdf) that you can find on the Promote the Progress Blog. According to Matt,

'While the letter indicates that the NDC supports efforts to advance legislation that will improve patent quality and provide common sense litigation reform, the focus is clearly on litigation. For example, the letter lists four specific reforms that the NDC urges Representatives Smith and Berman to include in their legislation. Three of the four reforms are litigation-oriented (injunctive relief, treble damages, and apportionment of damages). The fourth is related to patent quality (third party submission of art).'

If the various reforms being proposed were introduced, we would see a system that, frankly, looked a lot more like the Australian system.