Details of the New Democrat letter of support for patent reform: Focus is on litigation reforms, including changing the injunctive relief calculus

Last week, the New Democrat Coalition (NDC) issued a letter to Representatives Lamar Smith and Howard Berman expressing support for their patent reform efforts.  I referenced an article discussing the letter yesterday.  I have obtained a .pdf copy of the letter and made it available for viewing and/or downloading here.

In the letter, which is signed by 14 Representatives, the NDC conveys its “strong support for …[the] efforts to draft patent reform legislation in the 109th Congress.”

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).

The letter reserves its strongest language for the injunctive relief suggestion: “…we encourage the Committee to take aim at those who seek to abuse the patent system for profit.” (emphasis added)  The NDC is supported by the hardware and software industries, and its plea for including a change to the calculus for awarding injunctive relief appears to put it at odds with other backers of the reform movement, such as the pharmaceutical industry and small business and individual inventor lobbies.

It’s only becoming more clear that the injunctive relief provision is the single most controversial component of the reform movement.