Patent Reform Act of 2010

The Senate has a substitute bill titled the Patent Reform Act of 2010.  Below is a summary of this bill:

A.  Patent Application Related.

  1. First to File System.  The one-year grace period would be eliminated unless the inventor was the first discloser.
  2. Micro-Entity.  A new entity called a “micro entity” is created for entities with less than 5 patent applications that quality for reduced fees (less than small entity fees).
  3. Post-Grant Review.  A new system of post-grant reviews handled by the appeals board.
  4. Third-Party Prior Art Submissions.  Pre-issuance submissions of prior art would be allowed.
  5. Fees.  The USPTO would be given authority to adjust its fees.


B.  Patent Litigation Related. 

  1. Venue.  Specifies that cases should be transferred to venues that are “clearly more convenient.”
  2. Right to Trial in Segments.  Creates a right to split a trial into segments (infringement/validity; damages; willfulness).
  3. Enhanced Damages Requirements.  Specifies that enhanced damages are for “willful infringement” wherein knowledge alone of the patent is insufficient and that any close case should be decided against willfulness.
  4. False Marking Lawsuits.  To bring a false patent marking claim you would now need to have “suffered a competitive injury.”
  5. Best Mode Requirement.  Best mode would still be required, but failure to fulfill the best mode requirement would no longer be an invalidity defense or a basis for holding a patent unenforceable.