The gateway toward patent reform legislation was narrowed in the Patent Reform Act of 2007, as described by Sen. Leahy in his statement summarizing the bills. It eliminates the provision on inequitable conduct, which I’ve commented on in every forum open to me. The 2007 version get down to the essential elements of “first-to-file” and “post-grant opposition,” which others have debated extensively.
The most interesting part of the new bill, IMO, was the provision granting jurisdiction to the Federal Circuit for interlocutory appeals of Markman rulings. Whether the core problem is “patent quality” by the PTO or “activism” by the CAFC, the Markman rulings are where the rocket launches or aborts. Interlocutory appeals should do as much to curtail the cost of patent litigation as anything proposed.
The provision, in the Senate bill, extends the “exclusive jurisdiction” of the Federal Circuit to appeals “from an interlocutory order or decree determining construction of claims in a civil action for patent infringement.” Sec. 10(b). This could expedite the litigants tasks in those districts, such as the N.D. Calif., where the Markman issues have to be part of initial disclosures, and rulings come earlier than in districts with no local patent rules.