Real or Hype? The Business and Litigation Impact of Patent Reform

Ever since the FCC released a report in 2003 raising the need for patent reform, Congress has been considering how to address perceived problems with the patent system, such as the apparent ease of obtaining invalid patents and the difficulty of challenging such patents once they are granted. Still, there are strong differences of opinion among industry leaders and the patent bar as to both the need for patent reform and what patent reform should look like.

Patent reform was placed on the front burner again when, on April 18, 2007, Senator Leahy and Representative Berman introduced bipartisan, bicameral patent reform legislation that would dramatically change U.S. patent law. The changes made by the proposed legislation include (1) moving the U.S. toward a first-to-file system, (2) limiting patent damages, (3) restricting the definition of willful infringement, (4) providing a new mechanism for post-grant review, and (5) permitting interlocutory appeal of claim construction decisions. But will these changes give businesses the reform they have been hoping for, or will they prove to be more hype (or headache) than reality?

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