Several reports suggest that a new patent reform bill will be introduced in Congress this week. Most early indications suggest very few surprises and it seems safe to assume that the new bill will look quite a bit like those of the past. This report from EE Times suggests that the main battle line will be drawn on a familiar sticking point of the past – apportionment of damages.

It’s possible that some progress has been made, though. The report does indicate that “the new bill will not create a controversial process proposed in the last session to let third parties challenge patents twice after they have issued.”

This refers to the controversial “second window” provision that has been a sticking point since the earliest days of post-grant review proposals (not just last session). While accepting the likelihood that post-grant review, which would allow third parties to mount an administrative challenge against issued patents, will be a reality someday, Pharma/Biotech has strenuously opposed the “second window” concept from the beginning. All post-grant review proposals have allowed for an initial challenge during a fixed time period after issuance (typically 9 to 12 months). Some proposals have also included a “second window,” which would allow for challenges mounted at any point in a patent’s term following some triggering event, such as upon receipt of a charge of infringement.

Pharma/Biotech has always viewed the existence of a “second window” as a perpetual cloud on the title of an issued patent. If the new bill omits the “second window,” can a deal on apportionment of damages be far behind?