On the Brink of Change—Congress Passes Patent Reform


The need to reform U.S. patent law has been perceived for almost a decade. Reports from government agencies (e.g., the Federal Trade Commission in 2003) and the National Academies of Science (in 2004), and advice from academics, pundits, and others identified purported inefficiencies and inequities in patent law as interpreted by the Court of Appeals for the Federal Circuit and the U.S. Patent and Trademark Office, and proposed solutions. Congress responded by introducing and passing (in one chamber or another) three different patent reform bills in the last three Congresses. But until now, there was insufficient consensus for Congress to pass a patent reform measure.

Thas changed: on September 8th, the Senate passed a bill, the “Leahy-Smith America Invents Act,” previously passed in the House of Represen¬tatives (that itself is a modification of a bill already passed by the Senate), and it has been sent to President Obama for signature (which is virtually assured, since the President is on record as sup¬porting patent reform as a way to stimulate the economy). The final Senate vote was 89-9, reflect¬ing broad support for patent reform legislation in this Congress—the Senate passed its version of the bill (S. 231) by a vote of 95-5, and the House bill (H.R. 12492) passed by a 304-117 margin. Accordingly, it is time to consider the changes, some extensive, that will soon be law. While the bill contains 37 sections, this article discusses only the most significant of these, including several sections that are particularly relevant to those in the biotechnology and pharmaceutical industries and those involved with university-derived inventions.

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