Comments of Representative Berman on introduction of the Patent Act of 2005 (HR 2795)
Last Wednesday, on introduction of the Patent Act of 2005 (HR 2795), Congressman Berman made comments on behalf of the original sponsors of the bill. View and/or download a .pdf of the comments here. I will update the PTP Patent Reform Library to include this document.
Here’s a few quick takeaways from the comments:
1. At times, Representative Berman seems to be bending over backwards to make it clear that the bill is simply a starting point while also stressing a need for relatively quick action on the issue.
“We acknowledge that the problems are difficult and, as yet, without agreed-upon solutions. It is clear, however, that introduction of this legislation will focus and advance the discussion….With or without consensus, Congress must act soon to address these problems.”
2. The comments, taken alone, would have you believe that the post-grant review system is a “go” at this point.
“I am pleased that, finally, at least a consensus has emerged among the various collaborators in support of the basic “post grant opposition” approach embodied in the legislation.”
It’s not quite that simple. The existence of the “second window” within which a review of an issued patent can be initiated has been a point of controversy at least since the early hearings by this Congress. This status was confirmed last week at the Conference on Patent Reform. Post grant review is hardly a settled matter.
3. The comments begin to lay out the intent of Congress behind the controversial injunctive relief provision (Section 7 of the bill).
“Section 7 is designed to address the negative effect on innovation created by patent “trolls.””
All comments made on this section of the bill relate to trolls. One problem, though. So far, no definition of “troll” has been offered and those that can be inferred from the language discussed to date are offensively broad.
The following comment may start to shed some light on the term, but can hardly be viewed as a definition.
“We have learned of countless situations in which patent holders, making no effort to commercialize their inventions, lurk in the shadows until another party has invested substantial resources in a business or product that may infringe on the unutilized invention. The patent troll then steps out of the shadows and demands that the alleged infringer pay a significant licensing fee to avoid an infringement suit.”
We might just need to decide on meanings for “lurk” and “the shadows” as well.
[Copyright 2005 J. Matthew Buchanan. Originally published on Promote the Progress (http://www.promotetheprogress.com).]
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