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January 4, 2008

Chop Chop

Former Chinese Senior Judge Yongshun Cheng mocks the scurrying of the puffy white baboons in the large rotunda building in the U.S. capitol. Judge Cheng figures that the patent reform proposals before Congress "will weaken the right of patentees greatly, increase their burden, and reduce the remedies for infringement; friendlier to the infringers than to the patentees in general as it will make the patent less reliable, easier to be challenged and cheaper to be infringed."

Judge Cheng's analysis was in reference to the Patent Reform Act of 2007, specifically H.R. 1908, but there has been no indication that those supporting it are replacing naked greed with a smidgen of equity. Thankfully, 2008 is an election year, and such controversial legislation may be less likely to become law. But most of the same troop will be back next year, just as brazen.

Post-grant review -

If there is no presumption of validity in the post-grant review procedure, the patentee will need to prove the validity of the patent, which will increase the burden of proof for the patentee...Because the burden of proof of the petitioner is less than that in courts, this provision is very easy to be utilized by the competitors, which will surely increase the time and cost for the patentees greatly if they have to raise litigation after this procedure as well as increase the uncertainty, and delay the exploitation of the patent.

Limiting venue and interlocutory appeal -

The new [venue] provisions limit the patent litigation into a limited exercise before special courts, which are obviously friendlier to the large corporate defendants and will unfairly prejudice patent holders seeking to enforce their patents.

Therefore, interlocutory appeal and mandatory stay will not only increase the Federal Circuit's workload, but also lengthen the cases. The prolonging of a suit will result in that patentee can not obtain the remedy in time and the cost for litigation will be increased greatly.

Apportionment of damages -

The emphasis of the apportionment will decrease the damages greatly in many cases, if not eliminated totally, therefore reduce the remedies to the patentees.

Interest groups behind the deformation -

[W]e can see that the bill will weaken the right of patentees greatly, increase their burden, and reduce the remedies for infringement. Therefore, it encounters strong opposition from many groups. However, even facing such a strong opposition, it was still passed by the House of Representatives.

The reason for this is partly because it was supported by some of America's largest and most influential companies, which carry much political clout with the US Congress. These companies have organized themselves into several lobbying groups. Many of these companies have been trying to reform the patent law for more than 5 years. They say that they are facing more and more patent infringement litigations and paying increasing amounts of damages in these years. For these companies, a weaker patent system, or one that benefits companies that do not rely on patent protection to obtain market dominance serves their interests.

The enlightened Judge Cheng has been nominated as one of the 50 most influential IP figures worldwide, according to the UK publication Managing IP.

A big hat tip of thanks to Hal Wegner for the information.

Posted by Patent Hawk at January 4, 2008 9:09 PM | The Patent System


Shame that Judge Chen didn't comment on the claim validity standard adopted by the world outside USA, which is neither "clear and convincing evidence needed" nor "patent owner has to prove validity" but, rather, "The claim is valid until the petitioner for its revocation shows more than a preponderance of evidence". Strikes me Judge Chen is a bit of a politician, carefully setting up the wrong proposition, then triumphantly knocking it down. He's got "an agenda" too, of course.

Posted by: MaxDrei at January 5, 2008 12:57 AM

Ironic, isn't it, that a commie should be schooling us on a distinctly capitalist program such as patent law?

Posted by: bierbelly at January 9, 2008 6:49 AM