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March 03, 2009

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Stephen Maebius

Among the key provisions in the senate version, damages would be reformed by requiring courts to ensure that if a reasonable royalty is awarded it reflects "the specific contribution over the prior art" of the patent. This was the critical issue that ultimately caused an impasse with the patent reform bill last year. It remains to be seen whether this language will be acceptable to key stakeholders.

Post-grant opposition is provided with a single 12 month window following issuance, but inter partes reexam is expanded by elimination of "could have raised" estoppel. If enacted, there will be 3 post-grant procedures for challenging a patent (ex parte reexam, inter partes reexam and post-grant opposition).

The bill also includes conversion from a first-to-invent to a first-to-file patent system.

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