Patently at Odds

Part of the concern, he said, is the steep penalty for treading on someone else's rights. In the Microsoft case, the jury in San Diego calculated damages based on the value of nearly all computers sold with the Microsoft Windows operating system rather than on the far lower value of the patented MP3 technology that Microsoft was found to have violated. Moreover, more than half the damages reflected Microsoft's sales worldwide instead of just within the United States, which tech executives said was an improper application of U.S. law beyond the borders.

In addition to the issue of how to assess damages, the struggle over revising the system focuses on how patents can be challenged, both at the patent office and in court, and where lawsuits can be filed.

Shortly after Sen. Patrick J. Leahy (D-Vt.) emerged as the new chairman of the Senate Judiciary Committee following Democratic congressional wins in November, he named patent reform as one of his top legislative priorities.

"This leadership of America is only as good as the system that fosters and protects innovation. We have to update it," Leahy said during a December speech outlining his program.

On the House side, Rep. Howard L. Berman (D-Calif.), who has long advocated changes in the patent system, has become chairman of the Judiciary subcommittee overseeing patents. The first hearing he scheduled, "The Case for Patent Reform," drew an overflow crowd, prompting some participants who long toiled in relative obscurity to voice their amazement at people lining up for more than an hour to hear about patents.

But the growing momentum reflects more than personalities. Patent law experts said the shift in congressional control has weakened the overall influence of pharmaceutical companies, which have overwhelmingly supported Republicans.

Since 2000, drug manufacturers have given $61.5 million to political candidates, with more than three-quarters going to Republicans, according to figures compiled by the Center for Responsive Politics. Of the 15 most generous industries, only oil and gas and general contracting gave a higher proportion of their money to Republicans. By contrast, computer and Internet companies played both sides. Of the $112.6 million donated since 2000, each party received almost exactly half.

The Supreme Court, meantime, has raised the profile of patent issues by accepting a half-dozen cases in the past two years, reflecting what legal experts said was the personal interest of the new chief justice, John G. Roberts Jr. The court last year improved the prospect for congressional action by ruling in a prominent case involving eBay that judges are not required to bar patent infringers from using the patented technology. Before the court essentially settled this issue, the dispute between tech and drug companies over whether injunctions should be automatic was so intense that it threatened to derail any compromise over new legislation.

Representatives of the pharmaceutical industry chafe at the accusation their companies are blocking reform, insisting instead that they are trying to protect the durability of patents vital for producing life-saving drugs.

"We cannot have a system that can kick patents out from under us," said Hans Sauer, associate general counsel of the Biotechnology Industry Organization. "It takes us 10 years and a billion dollars to get a product from the bench to the bedside."

Yet Simon, of the software alliance, alleged that drug companies are less interested in promoting research and development than in using strong patents and stiff penalties to dominate the marketplace.

"They have a history of using it as a sword against generic competitors and other competitors," he said.

Staff researcher Richard Drezen contributed to this report.