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Michael C. Smith
Marshall, Texas
Interests: Reading, history, architecture, and music.
Recent Activity
Peter, A good suggestion for consideration tomorrow. I am speaking twice next week on the new "proportionality" rules at State Bar seminars, and I brought up the new rule's effect on patent cases when I testified before the Rules Committee last January. Will be interesting what effect the new "proportionality" requirement has on patent cases.
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As to 2., there are proposals being discussed at the federal level that I believe would make the letter writer liable for a subsequent finding of invalidity. I don't think that this bill would, because the "bad faith" language is drafted in terms of making a representation that the patent is valid when a court has held it isn't. A later finding wouldn't make the prior representation false or deceptive when it was made. But this bill is also narrowly drafted to address objective representations, as opposed to other legislative efforts that define "bad faith" as asserting patents that are lacking in merit, under which yes, I think a representation made today would be arguably more actionable by the AG after a court has held that the patent is invalid or unenforceable. But it would be actionable immediately as well under that definition. The issue with more broadly drafted bills is that defining "bad faith" as lacking merit triggers in many peoples' mind preemption concerns because it would require the AG to litigate the patent's merits in state court as part of its case - which would get the whole shebang removed and eliminate the statute's benefits to letter recipients. For that reason, I know there are patent demand letter proposals in Congress that would establish a national set of standards for patent demand letters, and those proposals aren't having to face the preemption challenges state statutes do, so they could proscribe (as well as prescribe) a broader set of statements. We live in interesting times!
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