Both of these things happen already (well, sort of) under existing law:
1. A defendant can request reexamination of the patent by the USPTO. There are pros and cons to doing so. [1]
[EDIT: If a defendant requests reexamination at an early-enough stage in the lawsuit, the judge is likely to grant a request to stay the lawsuit until the reexamination proceedings are finished. If the defendant waits too long, though, the judge might think the defendant is gaming the system to try to delay the trial, in which case the judge likely will deny a request for a stay.]
2. A patent holder that actually makes and sells something can recover the profits it would have earned if it had made the infringing sales. To do so it has prove some things it doesn't have to prove to recover a reasonable royalty. A troll can't do this because it didn't have the capacity to meet an existing demand at the time of the infringing sales. [2]
A reexam request requires new prior art. You can't use what USPTO evaluated improperly (rms argued public prior art databases are a bad idea for this reason) and you're out of luck if it was something so obvious that nobody bothered writing it down. It also costs thousands of dollars per patent with no refund for winning.
I know they can request it but I have seen cases being litigated while the patent review was being conducted. In my opinion, it is asinine for that to happen.
Comments
Both of these things happen already (well, sort of) under existing law:
1. A defendant can request reexamination of the patent by the USPTO. There are pros and cons to doing so. [1]
[EDIT: If a defendant requests reexamination at an early-enough stage in the lawsuit, the judge is likely to grant a request to stay the lawsuit until the reexamination proceedings are finished. If the defendant waits too long, though, the judge might think the defendant is gaming the system to try to delay the trial, in which case the judge likely will deny a request for a stay.]
2. A patent holder that actually makes and sells something can recover the profits it would have earned if it had made the infringing sales. To do so it has prove some things it doesn't have to prove to recover a reasonable royalty. A troll can't do this because it didn't have the capacity to meet an existing demand at the time of the infringing sales. [2]
[1] http://en.wikipedia.org/wiki/Reexamination
[2] http://www.finnegan.com/resources/articles/articlesdetail.as...
A reexam request requires new prior art. You can't use what USPTO evaluated improperly (rms argued public prior art databases are a bad idea for this reason) and you're out of luck if it was something so obvious that nobody bothered writing it down. It also costs thousands of dollars per patent with no refund for winning.
I know they can request it but I have seen cases being litigated while the patent review was being conducted. In my opinion, it is asinine for that to happen.