Patent Reform Act of 2009

On Tuesday, March 3, 2009, members of the House and Senate Judiciary committees introduced the Patent Reform Act of 2009. Last year, the House passed a similar patent reform measure, but the Senate failed to gain a consensus on various issues in the proposal. Among the most controversial issues was a proposed new damages measure that would significantly change the method of calculating damages for patent infringement.

Large technology and software companies have supported the proposed damages provision, contending that current damages calculation methods lead to awards that exceed what the patents are worth. On the other hand, pharmaceutical and biotechnology firms have opposed the proposed damages provision, claiming it would diminish the value of patents and encourage infringement.

On April 2, 2009, the Senate Judiciary Committee approved an amendment that would replace the hotly debated calculation of reasonable royalty damages provision with a gatekeeper provision that would enhance a judge’s role in identifying the proper legal damage standards for the jury.