This clarified standard appears to ease the burden on a party seeking to prove diligence.Camran Nezhat, was already in possession of a draft application he received from his patent attorney on January 28, 1998.The purpose of this requirement “is to assure that, in light of the evidence as a whole, ‘the invention was not abandoned or unreasonably delayed.’” Slip Op. Under that standard, the court stated that an inventor is not required to work on reducing his invention to practice every day during the critical period and periods of inactivity do not automatically require a finding of no diligence.

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In his view, the PTAB properly applied the court’s precedent to find the evidence insufficient to allow Perfect Surgical to meet its burden.

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The court found that “these [older specific] licenses are far more relevant than the general market studies” that plaintiff’s expert selected to rely upon.

Judge Rader’s recent active gate-keeping decisions, such as , are even more significant and instructive when viewed in the context of the currently pending patent reform legislation, which specifically proposes addressing the issue of patent damages by having the courts act as stricter gate-keepers on damages theories and evidence.

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Judge Schall dissented from this portion of the opinion because he concludes that the dates of inactivity during the critical period were sufficient to support a finding that the inventor was not diligent.

Judge Schall particularly noted that Perfect Surgical offered no specific evidence (such as medical records or surgery dates) to excuse the lack of activity.

For example, the 2007 Patent Reform Bill proposed limiting the amount of damages recovered as a reasonably royalty based on an attribution of “the economic value properly attributable to the patent’s specific contribution over the prior art” and statutorily limits the application of the “entire market value rule” to circumstances where the patentee has established that that the claimed feature is “the predominant basis for market demand” of an entire product.