The Senate has a substitute bill titled the Patent Reform Act of 2010. Below is a summary of this bill:
A. Patent Application Related.
- First to File System. The one-year grace period would be eliminated unless the inventor was the first discloser.
- 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).
- Post-Grant Review. A new system of post-grant reviews handled by the appeals board.
- Third-Party Prior Art Submissions. Pre-issuance submissions of prior art would be allowed.
- Fees. The USPTO would be given authority to adjust its fees.
B. Patent Litigation Related.
- Venue. Specifies that cases should be transferred to venues that are “clearly more convenient.”
- Right to Trial in Segments. Creates a right to split a trial into segments (infringement/validity; damages; willfulness).
- 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.
- False Marking Lawsuits. To bring a false patent marking claim you would now need to have “suffered a competitive injury.”
- 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.