The inequitable conduct defense is frequently pled, rarely proven, and always drives up the cost of litigation, he said. If an inequitable conduct claim wins, a valid patent will be held entirely void, and the infringer walks away without any liability, he added. There is "virtually no downside for the infringer to raise this type of attack." Yet Hatch acknowledged the generic drug industry deems the inequitable conduct defense sacrosanct and any attempt to change it will be met with opposition. Once compromise is reached on that issue and on how to calculate damages in a patent lawsuit, "the rest of the bill will fall into place," he said.

With respect to damages, Hatch said specific language like "apportionment, contribution over prior art, or essential features" has been dismissed by many but at last week's Judiciary hearing, Hatch said he heard agreement on a gatekeeper approach where a judge instructs juries on what factors to consider in determining damages and agreement that damages should be based on the economic value of the invention to the infringed product or process. The bill has been listed for a Thursday mark up but will likely be held over. At the event, Hatch also told a joke with the punch line: "But you're a patent attorney, you don't know enough law to hurt anybody." Follow the jump to read it...

There is "virtually no downside for the infringer to raise this type of attack." I agree!

Jens