Six Year Patent Reform Effort Heads to Final Vote

Today is the opening day of the 2011 American Football season. A few months back it seemed that the 2011 season may be lost altogether or significantly delayed due to legal wrangling and disputes over revenue allocation. Then suddenly, the parties came to an agreement, and in a matter of days an agreement was forged and signed. The games were set and ready to begin…tonight is the culmination of those hard fought efforts as a new season begins.

It is only fitting that today is also the day that the U.S. Senate, after years of legal wrangling and disputes over USPTO fee diversion, will also set aside their differences and kick off a new era in U.S. Patent Law.

Senate Majority Leader Harry Reid (D-Nev.) announced yesterday that the Senate will hold a vote on final passage of H.R. 1249 (Leahy-Smith America Invents Act) at 4PM today. While there has been a discussion of amending the bill, which will be discussed prior to the 4PM vote, Senate leadership has made clear that amending at this juncture is simply not an option.

Three amendments have been offered, as follows:

1. (Coburn-R-Okla) Amendment to end fee diversion

2. (Sessions R-Ala) Amendment stripping out patent term extension provision (or the “dog ate my homework provision” as labeled by some)

3. (Cantwell D-Wa) Amendment modifying the transitional business method patent provision. (amendment here)

Senate Judiciary chairman Patrick Leahy (D-Vt.) strongly urged his colleagues yesterday to oppose an amendment from Sen. Tom Coburn (R-Okla.) that would end fee diversion from the U.S. Patent and Trademark Office, stating :

While I oppose fee diversion, I also oppose the Coburn amendment. After six years of work to get this bill here, this may kill the bill over a formality – the difference between a revolving fund and a reserve fund. [The House] spent days and weeks in heavy debate, working out their compromise in good faith and it was worked out by the House Republican leadership. There is no reason that having done that, they will reconsider and allow the original Coburn language to violate their rules and avoid oversight.

Regardless of your position on this legislation it is difficult to argue with Senator Leahy. Many that watched the House debates were sickened by the politicizing of the Coburn provision. That is to say, those in the House supporting full allocation of USPTO fees to the Agency were painted as supporting “increased government spending in a time of economic crisis.” (Of course, USPTO fees are not tax revenue).

In any event, I expect that the amendment efforts will fail and the bill will be passed today. Thereafter, the ball will be handed off to President Obama just in time for his speech this evening.

Are you ready for some football?