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Given that a new legislative session has begun in the USA and that technology advances so much faster than other areas of industry, should patent terms last for less than the traditional 20 years, enabling a faster adoption of proven innovation?
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As we have been watching recently, e.g. Reforms to Be Considered and First to File, two specific areas of damages in the proposed reforms to the Patent System, the False Patent Marking provisions (35 USC §292) and the Patent Infringement Remedies (35 USC §284), had mixed results as several sections were stricken along the way to a 95/5 vote. The First-to-File system overhaul did pass, however, and will change corporate IP management strategies if the modified bill makes it through the House of Representatives.
Current law allows “Any person” to sue for the “$500 for every such offense” penalty (35 USC 292(b)) and this has created a veritable cottage industry of “patent marking chasers,” particularly ever since the $500 penalty has been applied to each item so marked, creating windfall profits to the filers (and the US Treasury).
The reform bill as passed did change this subsection with the following language: ”(b) Any person who has suffered a competitive injury as a result of a violation of this section may file a civil action in a district court of the United States for recovery of damages adequate to compensate for the injury.” Consequently, the reform on this issue aims at limiting recovery to compensatory damages to persons with actual damages, restoring rationality to this niche of patent litigation.
The proposed reform included, for Section 284 – Damages, adding a subsection specifying the procedure for determining damages. It did not make it into the bill as passed. In fact, there is no instance of the number 284 in the whole document.
For the complete bill as passed by the senate, see this download from the GPO.
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