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March 10, 2009



I have a suggestion for making this "damage" provision palatable: codify the 15 Georgia-Pacific factors and be done with it. Georgia-Pacific recognizes that each damage case is different and unique, and may require application of different sets of these factors. Also, you won't have as much difficulty hitting equilibrium in the case law as these factors already have quite bit of case law to provide guidance on these factors, and how to use them. By contrast, the proposed damages provision, being completely new, will require much longer to reach that equilibrium. I see no point in "reinventing" the standard where there's a good one already in place in the case law; codifying that standard will simply confirm that. If Congress insists on this nonsensical new damage provision, then I frankly would be happy if this so-called "patent reform law" sank with no survivors.

I think everyone outside of Google and Apple can agree that codifying Georgia-Pacific is the only sensible approach. Do we really want new law that hasn't been tested? GP has been lititgated, tested, and we know what it means.


Thanks for your comment. If it were up to me, I would be satisfied with the status quo, versus the nonsense in this new version of so-called "patent law reform." But, I don't view codifying Georgia-Pacific as "new law" but simply fixing, by statute how damages should be determined. Put it this way, would you rather propose that Georgia-Pacific be codified as "real patent law reform" (and with an existing body of case law ready to apply), or do you want to simply allow Microsoft, Google, Apple and the rest of members of the oxymoronic CFPF dictate the current nonsensical provision as so-called "patent law reform"?

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