Patent Reform A Reality: Costs And Opportunities Ahead

Article preview from "The Gray Sheet"- September 12, 2011

Comprehensive patent reform, which finally passed Congress last week after six years of debate, is likely to add new costs and uncertainties for device companies, but also important new opportunities for the most proactive of firms, patent attorneys say.

Patent Reform A Reality: Costs And Opportunities Ahead

Article preview from "The Gray Sheet"- September 12, 2011

The broad-based legislation was approved by the Senate on an 89-9 vote Sept. 8. Because the House passed the exact same bill in June, the measure was sent along to the president, who has said he plans to sign it into law.

The 150-page legislative effort does much to change procedures for how patents are awarded and challenged. (See “ Patent Reform Makes Another Run Towards The Finish Line ” – “The Gray Sheet” May 2, 2011.) But there are two core reforms that are most likely to impact device manufacturers’ routine interaction with the patent system.

One is the shift from the current system of determining what party should rightly own a patent based on who can prove they invented something first, to a new approach that relies on the threshold of who filed the patent application first with the Patent and Trademark Office.

The other core change is the addition of new procedures allowing parties to challenge a patent directly with the patent office without having to file a much more expensive lawsuit.

In both instances, firms that can invest in early patent strategies could win out, attorneys say.

“In terms of the general big picture, the changes will cause medical device companies and other companies ... to be much more proactive in many of their patent activities,” emphasized attorney Les Bookoff, who focuses on medical device patent issues at the law firm Finnegan.

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