Predictions on content and time frame of coming patent reform bill

I thought it would be fun to make predictions about the upcoming patent reform legislation.  What will the bill include when its introduced?  Will there be competing bills introduced?  When will a bill be introduced?  I know, predicting the actions of Congress is a fool’s game.  That doesn’t change the fact that its sort of fun…so here are my predictions on the when and what:

When?

I think a bill will be introduced before the National Academies meeting on June 9.  Lamar Smith has purportedly agreed to deliver a lunch keynote address at the meeting, and I’m betting he’d love to talk about the bill he recently introduced on the subject.  Of course, I could be completely wrong…he may use the platform to talk about a bill he plans to introduce soon.  What actually happens, of course, will depend on the negotiating and lobbying that is occurring right now.  See the What? section below for more on that subject.

What?

What reform proposals will actually make it into the bill that gets introduced?  I think most of the major proposals will be in the bill, including:

• adoption of a first inventor to file system
• implementation of a post grant review system within the Patent Office*
• elimination of the best mode requirement
• a complete overhaul of the inequitable conduct ‘system’ – moving the question out of the courts and into a new office within the Patent Office
• allowance of applications to be filed by companies
• changes to the standard for awarding willfulness – including codification of Knorr-Bremse and an explicit indication that mere knowledge of a patent is insufficient
• 18–month publication of all applications that are not-abandoned, and
• a change to the calculus for awarding injunctive relief**

* Two questions need to be resolved on this reform proposal:

1. Timing – by what deadline must an application for post-grant review of a patent be filed ?  9 months after issuance?  12 months?
2. The existence of a second ‘window.’
• After expiration of the initial window provided by #1, will a second window be available within which a party can request review?
• How does the second window open?
• What constitutes sufficient notice of infringement if that is indeed the mechanism by which the second window opens?
• Are there any time constraints on the second window, if it exists, or can an application for post grant review be filed at any time in the term of a patent once the criteria for opening the second window are met?

** This has to be the hottest area of debate on the entire patent reform topic right now.  Points to consider on this issue:

1. It is possible that this provision will not be included in the draft bill.  The pharmaceutical lobby has squared off against the software and manufacturer’s lobbies on this issue.  Will it be killed before introduction?  This is, I believe, the most interesting question to be resolved upon introduction of the bill.
2. I believe it will be included in the bill (hence its inclusion in the What? section) for this reason – during the hearings, a belief emerged that it may be possible to tailor this reform proposal to specifically address the patent troll situation, which nearly everyone acknowledged as a problem, while accommodating the concerns of others.

Please remember that these predictions are entirely my own.  I’d love to hear comments from anyone who agrees or disagrees with these predictions.