The Political Setting

Just this month, the US’s ill-conceived Patent Reform Act (PRA) of 2008 met a welcome death in Congress because of a political impasse over its central provisions. That it got this far, and may yet be revived, is a stark warning sign as to how far off the rails patent policy can go. The notorious 2006 Supreme Court decision in Ebay v MercExchange started the ball rolling by undermining the ability of private patentees to gain injunctive relief as a matter of course for patent infringements, thereby forcing at least some patent holders to accept compulsory licensing arrangements that could compromise their ability to enter into exclusive deals with their preferred parties. The PRA then sought to reduce the level of damages for infringement in ways that further compromise the integrity of the current system.