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IP: Divided Congress May Create Perfect Storm for Patent Reform

The promise of Patent Reform reminds me a bit of Lucy's perennial football prank on Charlie Brown in the Peanuts comic strip. Every year Congress tees up a reform package designed to cure the ills of the Patent System, patent practitioners and business owners get excited about the first real reform of the patent system in decades and then, like Lucy, Congress yanks the ball away by closing its legislative session without taking action.

This past year was no different. In March, the Senate introduced the Patent Reform Act of 2010. The Act included a number of measures to provide clarity in the patent system and to curb patent litigation abuses. For example, the 2010 Act provided guidance on patent damages, raised the bar for finding willful infringement, discouraged forum shopping and eliminated false marking suits where the plaintiff could not show competitive damage. All in all, the 2010 Act was seen as pro business and a good first step towards much needed systemic change.

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Mark C. Scarsi

Mark Scarsi is a partner in the Intellectual Property Group of Milbank, Tweed, Hadley & McCloy, LLP, resident in the Los Angeles office.

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