Although promised on Monday, the world still awaits the highly anticipated Senate patent reform bill. As pointed out previously, a major sticking point is the “fee shifting” (a.k.a. loser pays) aspect of the bill. The Senate has seemingly struggled to balance the needs of innovators that enforce patents with the need to rein in patent troll profiteering. That struggle may have been mooted today by the Supreme Court’s decision in Octane Fitness LLC v. Icon Health & Fitness, Inc. (here)
With the Octane decision making clear that the district courts may be more flexible in awarding sanctions for frivolous patent suits, and the companion case of Highmark Inc. v. Allcare Health Mgmt. Sys., Inc. (here) clarifying that sanction decisions are to be reviewed under an abuse of discretion standard, it would seem that the highest court has delivered a ready made solution to the current legislative gridlock. (exceptional suits were defined by the Court as those standing out from others in terms of the totality of circumstances).
This development is similar to the years of debate Congress had in the run up to the America Invents Act on inequitable conduct only to be trumped by the CAFC in Therasense. Once Therasense issued, the hard work that was put into the design of Supplemental Examination was for naught. The Senate is scheduled, again, to mark up the Leahy bill on Thursday morning.
Stay tuned, the bottleneck may have been broken.