SAMPLE LETTER

Patent Reform S1145

Below is a sample letter for you to alter and personalize. When speaking or writing to Senators Hutchison and Cornyn about this patent reform bill, it is necessary that you mention: 1. that you are a constituent, 2. what region of Texas your business is located, 3. the number of employees you have, 4. that you are OPPOSED to S.1145, and 5. how this will personally affect you, your business, and your employees.

November 5, 2007

The Honorable ________
United States Senate
_________  Senate Office Building
Washington, D.C. 20510

Dear Senator ______,

I am writing to express concerns with S. 1145, the Patent Reform Act of 2007.  This legislation is perhaps the most significant revision of U.S. patent law in the past fifty years and will have far-reaching implications on INSERT COMPANY NAME and our employees.  Of specific concern are provisions in the bill dealing with inequitable conduct reform, the creation of a new open-ended post grant opposition system, and changes in the law governing damages awards in patent litigation.  These issues are critical to the INSERT NAME because of their potential for negative impact on research and commercialization, as well as current and future licensing agreements.

INSERT COMPANY NAME is a Texas-based company (insert information about company including where it is located, what technologies it licenses, commercializes, manufactures, etc., how many employees are within company, and any information specific to define company).

We are particularly concerned with certain provisions in S 1145 which, if passed, would be detrimental to the current environment of commercialization in the life science industry and particularly to the survival and success of INSERT COMPANY NAME.

Issues of concern:

Post Grant Opposition System:
We support an administrative post-grant opposition procedure.  However, the current legislation creates a new, open-ended system unlike any in the rest of the world, in which patent holders will have to defend their patent against multiple attacks from multiple parties throughout the life of the patent.  Having to participate in multiple challenges on a single patent will be extremely burdensome for a small company.  Additionally, the opportunity for multiple attacks will create a cloud of uncertainty over patents which could negatively impact the commercialization of novel technologies.  We therefore request an opposition procedure that is finite and predictable.

Inequitable Conduct Reform:
The doctrine of “inequitable conduct”, called a “plague” by the Federal Circuit, and inefficient and expensive by the National Academy of Sciences, is an oft-used defense in patent litigation where an accused infringer can allege that a valid patent should be held unenforceable because of misrepresentation before the PTO. Under current law, the punishment for misleading the PTO is to hold the entire patent unenforceable. The frequency and the severe penalties associated with these charges have a chilling affect on collaboration between the public and the private sector, and creates significant difficulty in securing capital investments for young, emerging companies.

Apportionment of Damages:
We believe the provision addressing the apportionment of damages in patent litigation is unnecessary and should be deleted.  The language in S 1145 creates a new regime for awarding damages based upon a “patent’s specific contribution over the prior art.”  This new, untested regime systematically undervalues the bulk of inventive work done in biotechnology because it (i) fixes the marketplace value of an invention at the time the invention was made – not when the patent is infringed, and (ii) attempts to set the commercial value of an invention according to its technological advance over preexisting technology, rather than, as under current law, determining a royalty based on the value obtained by the infringer by utilizing the patented invention.  This fundamental shift in valuation will make infringement cheaper, and thus incentivize infringement and discourage good faith licensing of inventions.  Additionally, the bill would impose arbitrary limits on when the value of the infringing product may be used as the base for calculation of royalties, which will have great impact in fields such as biotechnology where the infringing product sales is often the most appropriate or only base upon which royalties can be assessed.

We believe that patent reform, if done properly, can truly improve the system for all innovators across the spectrum of American industry.  There is broad consensus on many of the reforms contained in S. 1145 that will do just that.  Unfortunately, by insisting on the controversial provisions described above, the proponents of this legislation are harming efforts to achieve true patent reform.  We urge you to oppose S. 1145, and to also oppose bringing the current legislation to the Senate floor before consensus is reached on these controversial issues.

Thank you for your time and consideration.

Sincerely,

Signature of President/CEO