Larry.. I don't know for sure, perhaps this is wrong, but...
What about the patents that are already granted based upon the earlier application of the TSM test; are they going to be “grandfathered?” The answer is no. The rush to the Patent Office and the Courthouse has already begun. Re-examination petitions have shown a very pronounced uptick at the Patent Office and the District Courts are seeing a greater number of invalidity cases filed...
Larry.. regarding the current Patent Reform act.. I believe there is language for reducing the amounts of awarded damages to just what would have been owed with a reasonable royalty.. basically removing 'willfull' and 'treble damages'..
Under current law, damages can be calculated as the entire market value of the product, and that number can be tripled, if the patent infringement is found to be willful.
Those opposed to changes in the damages provision say the costs of infringement should be high to protect their patents.
But big high-tech companies argue that this calculation is inappropriate for cell phones, televisions, or other gadgets that contain a dozen or more patented features. Under the patent reform bill, damages would be based on the contribution that the infringed patent makes to the product.
Damages: The Substitute S. 1145 bill, consistent with current law, states that the court shall award damages “adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interests and costs.” It also provides a “procedure” for receiving expert testimony “as an aid” to the determination of “damages or of what royalty would be reasonable.” It then provides the “standard for calculating a reasonable royalty” directing the court to determine which of three given methods should be used to calculate a reasonable royalty and to identify “the [only] factors that are relevant [and can be considered for] the determination of a reasonable royalty.” The three methods a court may use are:
(a) the “entire market value rule,” but only if the invention’s specific contribution over the prior art is the predominant basis of the infringing product’s or process’s market demand;
(b) marketplace licensing, if the invention has been nonexclusively licensed or if there are “sufficiently similar non-infringing substitutes” in the relevant market, and the infringer’s use is substantially the same as that of the nonexclusive license or sufficiently similar non-infringing substitutes; or
(c) a reasonable royalty analysis that applies only to the portion of the infringing product’s or process’s economic value attributable to the invention’s specific contribution over the prior art, if neither (1) or (2) above can be shown by the claimant.
I thought there was also language regarding regulation of 'trickle down' licensing, but can not seem to find it.. anyone know where I'm remembering that from??
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