Jon Dudas held a Q&A with the media this morning to discuss the recently-issued Bush administration letter of opposition (.pdf) regarding the Senate version of The Patent Reform Act of 2007 (S.1145).
Director Dudas characterized the bill (and legislative reform proposals in general) as creating “a false choice on innovation.” How can it be that some folks believe the bill will end innovation as we know it while others see it is downright necessary for innovation to continue?
Following the theme of the opposition letter, he noted that the section on damages is a deal breaker. The administration believes that the current language in the bill unnecessarily ties the hands of federal judges and fears that, over the long term, the language would inhibit innovation and might even encourage infringement.
Interestingly, Director Dudas, in discussing the damages provision, noted that “the overall goal of reform is to promote innovation across all business models and industries” and that the damages provision needs to respect that goal. In that light, he reiterated the administration’s position on damages reform: a flexible approach that gives federal judges the “ability and responsibility” to apply discretion based on the “facts, technology and business model” involved in a particular case.
He also shed light on the administration’s position on post grant review. It favors the two window approach, but wants bigger teeth in the bill in order to make the new system “a true alternative to litigation.” How? Include very strong estoppel measures, including an “anything raised or that could have been raised” standard for challenges brought in the second window.
Director Dudas had several other insights on patent reform legislation in general:
“Reform needs to be technology neutral.”
“First-to-file needs to be a ‘pure first-to-file‘ system.”
(He explained that a “pure first-to-file” system would not exclude inventor disclosures from the scope of prior art. This seemingly major point of disagreement with the language of S1145 is not explicitly mentioned in the letter of opposition, unless this veiled reference counts: “we would like to work with you to address technical issues regarding the scope and application of prior art and the grace period.”)
“We support the fee-setting authority provision. Some fees should be lowered, some raised, and, quite honestly, some should go away….”
…and offered his outlook on reform legislation:
“We think a balance can be struck on the damages issue.”
“several reform measures could stand on their own or together in a smaller reform package” (ala the focused v. comprehensive approach to reform)
“It varies from Senator to Senator. Some want it done now. Others are saying ‘let’s take the time to get this right, no matter how long it takes’.” (answering a question about the prospect for passage this year)
