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March 19, 2009



The Kyl bill is still “bad news” in my opinion. The damages provision looks like an improvement over that in S.515/H.R.1260 in providing greater flexibility in the factors used to assess damages. But the post-grant review provision is worse than that in S.515/H.R.1260 by providing for an everlasting “second window” which in my opinion is a deal breaker. The next to last item looks like an effort to resurrect Applicant Quality Submissions (AQSs) in a more palatable form, but is still a very bad idea. The best that can be said for last item (inequitable conduct) is that it at least addresses this “plague,” but does so in a manner that is at least as draconian compared to the current state of the law and gives it to the body least able to deal with it (USPTO). The Kyl bill is still not “true” patent law reform by a long shot. Let it too sink with no survivors.

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