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SENATE PROCESS PATENT BILL's "NOTICE" LANGUAGE

Executive Summary

SENATE PROCESS PATENT BILL's "NOTICE" LANGUAGE puts too much burden of proof on patent owners to provide evidence that only their process was used for an alleged infringing product, the Pharmaceutical Manufacturers Association (PMA) is contending. The section is one of three areas of Sen. DeConcini's process patent legislation (S. 1200) that PMA would like modified. PMA is scheduled to meet with DeConcini's staff May 26 to discuss the association's position. The provision stipulates that the patent owner's patent infringement notification must specify why the patent holder believes both that the product was made "by the infringing process" and that the product was not made "by a non-infringing process." It is PMA's view that unless the patent holder can provide such negative evidence, which PMA maintains is a burdensome chore, the notification can be disregarded. In seeking further changes to the notification provisions, PMA is looking to alter a section that was written to address the concerns of patent holders expressed earlier in the legislative process. DeConcini (D-Ariz.) said at a May 13 subcommittee markup of the recently crafted bill that the notice standard requirement is less stringent for patent owners to meet than previous Senate process patent legislation ("The Pink Sheet" May 18, T&G-1). The May 19 markup of the bill by the full Senate Judiciary Committee was postponed, in part, to allow time for a compromise to be worked out with PMA. The committee is expected to consider the bill at a June 4 markup. A second concern PMA has with the bill relates to the disclosure of patent information to suspected infringers. PMA feels that the bill should be reworked so that it forces a retailer or distributor of suspected infringing products to obtain written assurance from their product source that the patented process at issue was not used. PMA would like the bill to mandate that a failure to obtain the written statement from the product source would be grounds for notice of infringement. Finally, PMA is wary of the provision in the bill that allows a retailer or distributor of infringing products to avoid penalties for partially manufactured products in transit or already in possession. According to the association, the provision will lead to a stockpiling of intermediates for prolonged periods.
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