An interesting bit from c|net about patent reform in the U.K., including a possible spring trial of peer patent review on the wiki model.

From Google. (Big surprise.)

http://www.google.com/patents

UPDATE:  News coverage of Google’s beta patent search functionality, at Wired and at c|net.

“Lexicographer, n. A pestilent fellow who, under the pretense of recording some particular stage in the development of a language, does what he can to arrest its growth, stiffen its flexibility and mechanize its methods. … “

“Litigation, n. A machine which you go into as a pig and come out of as a sausage.”

“Monologue, n. The activity of a tongue that has no ears.”

I first blogged about the Senate version of the patent reform bill back in August, just after it was introduced.

A comment in a post from just a few days ago prompted me to take a look back at the Senate bill.  Specifically, I wanted to remind myself of the new attorney fee shifting provision.  Here’s what Section 5(b) of the Senate patent reform bill, S. 3818, says (on p. 23 of the bill):

(b) ATTORNEY’S FEES. - Section 285 [of Title 35] is amended to read: “(a) The court shall award, to a prevailing party, fees and other expenses incurred by that party in connection with that proceeding, unless the court finds that the position of the nonprevailing party or parties was substantially justified or that special circumstances make an award unjust.”.

Today, 35 U.S.C. sec 285 reads as follows: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.”

The House version of the patent reform bill does not contain this provision, as I recall.  I think it makes a great deal of sense, in U.S. patent litigation, to move much closer to the English Rule for damages.

Earlier today, the Federal Circuit issued its opinion in an appeal from a preliminary injunction grant. The case is Sanofi-Synthelabo v. Apotex, No. 06-1613 (Fed. Cir. Dec. 8, 2006). The court affirmed Sanofi’s preliminary injunction against Apotex.

The case is an important one, for at least two reasons:

1. By my reckoning (tracking all post-eBay injunction cases), this is the first time since the Supreme Court’s May 15, 2006, decision in eBay v. MercExchange that the Federal Circuit has affirmed a preliminary injunction. In Abbott Labs. v. Andrx Pharms., 452 F.3d 1331 (Fed. Cir. June 22, 2006), the court reversed the preliminary injunction on the ground that Teva had raised a substantial question about the validity of each of Abbott’s asserted patent claims. In Wireless Agents LLC v. Sony Ericsson Mobile Communications, 189 Fed. Appx. 965 (Fed. Cir. July 26, 2006), the court affirmed the denial of a preliminary injunction, and failed to mention eBay at all.

2. The court, in this Sanofi case, expressly notes - and refuses to rule on - the question whether the presumption of irreparable harm that followed from a likelihood of success showing survives the Supreme Court’s eBay decision. (I have blogged about the different approaches the trial court’s have taken to the presumption, post-eBay, here, here, and here.) The court notes, on p. 20 of the slip opinion, that the trial court had “applied a presumption of irreparable harm in light of its conclusion that Sanofi established a likelihood of success on the merits.” In addition, however, the trial court had “also found that Sanofi proffered substantial evidence establishing other forms of irreparable harm.” Slip op. at 20. The Federal Circuit, for its part, affirmed on the basis of the trial court’s more detailed findings … not on the basis of the presumption. Slip op. at 20-22.

On the presumption’s continuing vitality, post-eBay, the Federal Circuit would say only this:

Apotex also argues that the district court erred by applying a presumption of irreparable harm because Sanofi established a likelihood of success on the merits. Apotex contends that applying such a presumption is in direct contravention of the Supreme Court’s decision in eBay v. MercExchange. Because we conclude that the district court did not clearly err in finding that Sanofi established several kinds of irreparable harm, including irreversible price errosion, we need not address this contention.

Slip op. at 22 n.9. It is interesting, too, that this is the one and only place in the opinion that eBay is mentioned.

Others have noted the relative increase in the Supreme Court’s patent law docket over the last two terms. An additional area of significant Supreme Court activity is antitrust - another facet of the legal framework that structures competition in our market economy.

In today’s New York Times, Linda Greenhouse summarizes the Court’s two new grants in antitrust cases. Lyle Denniston described the same grants at SCOTUSblog yesterday.

UPDATE: Tony Mauro had this story about Leegin, the minimum retail price case, back in September. Hanno Kaiser weighed in at Antitrust Review, and Josh Wright weighed in at Truth on the Market.

UPDATE 2: And here’s a fresh analysis from Thom Lambert at Truth on the Market.