While still at least a week away from the official Manager’s Amendment on the The Patent Transparency & Improvement Act, a document has been circulating purporting to outline the compromise between Senators Schumer (D-NY)and Cornyn (R-TX). (here). Most of the changes are directed to fee shifting and patent litigation pleading and discovery controls.
Archive for the ‘Patent Law Reform’ Category
With many fearing that the Senate Judiciary Committee had lost their way on S.1720 known as The Patent Transparency & Improvement Act, news comes today that after weeks of partisan wrangling compromise has finally been reached. Senator Leahy posted the following statement on his webpage minutes ago:
For weeks, members of the Judiciary Committee have been engaged in extensive bipartisan negotiations on legislation to address abuses in the patent system. We have made enormous progress, and we now have a broad bipartisan agreement in principle. This is a complex issue and we need additional time to draft the important provisions that have been the subject of discussion.
I have talked to many Senators on both sides, and because I want to be sure everyone is comfortable with how these pieces fit together, I will circulate a manager’s package the day we return from recess, and the Judiciary Committee will consider that legislation the first week we are back.
The Senate Judiciary Committee continues to struggle with S.1720 (Patent Transparency & Improvements Act of 2013). Yet again, the Committee has postponed mark-up of the bill. While mark-up remains possible on Thursday April 10th, given the growing political dissension along party lines on fee shifting, and significant lobby pressure on all sides, it now seems impossible for the Bill to advance in any significant regard before this Friday’s Easter Break. Unless progress is made in the next few weeks the bill is in danger of stalling for the remainder of the year (i.e., after midterm elections conclude).
Although discussing the Patent Transparency and Improvements Act of 2013 in today’s executive business meeting, the Senate Judiciary Committee decided they needed a few more days. The Committee intends to work toward releasing a manager’s amendment next Tuesday, April 8th. Proposed amendments are expected in the coming days and may be posted to the committee web page before Tuesday.
Last week, the Senate Judiciary Committee generally considered bill S. 1720 entitled Patent Transparency and Improvements Act of 2013 but held over the matter for this week. It seems there was a bit of a stalemate on the topic of litigation fee shifting and expansion of the Covered Business Method (CBM) challenge proceeding at the USPTO. Senator Cornyn (R-TX) appeared to be the most vocal. Yet, the Senate seems intent on working out a deal to keep the legislation moving. So, we may see the most recent version of the Bill later this week, further amendments to come when the bill moves to the Senate floor.
This is all despite the fact that the AIA has altered the patent assertion landscape to the point where the USPTO is being criticized for being too effective…..that would have been an April Fools joke a few years ago.
Mark-Up Scheduled for Senate Judiciary Committee March 27th
Senator Leahy will dust off his proposed bill S. 1720 entitled Patent Transparency and Improvements Act of 2013 next week. The Bill has been the subject of fairly intense lobbying over the past few months, stalling the otherwise fast track effort. With the mark-up scheduled for Senate Judiciary Committee consideration on March 27th, it is expected that debate on the revised bill will be pushed for early/mid April.
It will be interesting to see the mark-ups and differences between the initial version of the Bill and its House counterpart (Goodlatte bill) — a veritable patent lobby report card.
With little progress being made in Washington DC these days on hot button issues such as immigration, health care, or debt control, the White House is once again going back to the patent reform well. The latest round of political theater occurred last Thursday when the White House announced yet another round of ”executive actions.” Like the earlier round, these also recycle ongoing PTO programs and initiatives as ”new ideas” of the administration.
The latest initiatives include providing a web page of resources for those facing patent troll suits, a program to encourage the USPTO to “crowdsource” for prior art, and additional seminars for patent examiners to keep them up to date on changes in technology and functional claiming. Of course, the PTO has been cooperating with industry on technology seminars for years, and the peer-to-patent program was introduced in 2007 to leverage crowdsourcing.
As an aside, the PTO now has a page of PTAB decisions on functional claiming, which I find useful.
Last Friday, the Senate Judiciary Committee concluded a round of additional staff hearings on pending Senate Bills S.1720 (Leahy) entitled Patent Transparency & Improvement Act. The hearings focused on the concerns of universities, small inventors, and restauranteurs/retailers with the currently proposed legislation. At the same time, the Committee considered refinements to the Bill, including the value in adopting one or more of the concepts expressed in related Senate Bills 1612 (Hatch), 1013 (Cornyn) and 866 (Schumer).
At the forefront of these deliberations is the concern to balance “unintended consequences” with the goal of eliminating frivolous patent suits, especially those targeting downstream users of off-the-shelf products. With the legislative effort completed in the House by the passage of the Goodlatte Bill, and the Senate coming down the home stretch with their companion bill, president Obama took the bold step of calling on Congress to reform patent law in his recent State of the Union address….you see where this is going.
Last week, the USPTO released a Notice of Proposed Rulemaking (NPRM) entitled Changes to Require Identification of Attributable Owner. The proposals would heap significant new administrative requirements on patent owners in the name of thwarting abusive patent suits. The agency explains the new reporting requirements will, in part, reduce risk of abusive patent litigation by helping the public defend itself against such abusive assertions by providing more information about all the parties that have an interest in patents or patent applications.
The proposal is unlikely to cause any kind of meaningful relief for companies targeted by patent trolls. Unfortunately, this effort is being driven from the White House. The PTO is fully expecting the firestorm that is coming to push back on this misguided mandate….unleash the fury.
The Senate Judiciary Committee will be scheduling additional staff hearings in the coming weeks on the potential impact of the proposed Patent Transparency & Improvement Act. The additional briefings are responsive to concerns of “unintended consequences” expressed during the last hearing, which was held in late December 2013. The additional hearings are expected to explore the concerns of universities, small innovators and new, smaller targets of evolving patent troll tactics.
With the House passing the Goodlatte Bill in short order at the close of 2013, Patent reform remains a hot issue. It is expected that Congress will continue to move forward at an accelerated pace so that some type of “reforms” can be in enacted into law in the first half of 2014. Given the fast track, it seems unlikely that major changes will be made to the Bill at this point in the legislative process.