Patent Law Reform

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House to Introduce Modified Bill Early Next Week (UPDATED FRIDAY)With the America Invents Act out of the Senate, the House is expected to introduce a slightly revised version of the bill next week.  House Judiciary Chairman Lamar Smith, (R-TX), is expected to roll out the House version as early as Monday in anticipation of next

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S.23 Exits Senate with Major Provisions IntactAs expected, S.23, now known as the America Invents Act breezed through a Senate vote today. (95-5) Touted as a jobs bill, most major provisions remain intact. Perhaps the most significant change proposed in the reform bill is the end of the  first to invent system in favor of

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Senate Bill Heads for Home Stretch this WeekWith Senator Feinstein’s amendment to strip out the first-to-file provision now defeated, it seems that the American Invents Act is headed for a vote this week. The cloture process invoked at the close of last week will effectively draw debate to a close this week, and, perhaps more

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Patent Reform & the Red Herring Patent Interference Argument

As the patent reform debate continues on the floor of the Senate, the expected battle against the so-called “first inventor to file” (FITF) began today. Senator Feinstein D-CA, broke from the party line and assailed the proposed FITF provision as inefficient, encouraging incomplete filings, and disadvantaging small inventors. Sen. Feinstein had an impressive understanding of these very complex issues.

In attempting to rebut Sen. Feinstein’s position, two arguments were consistently repeated. First, it was argued that the “rest of the world” had a first inventor to file system. Ironically, this argument was made by the same folks beating the “America is the greatest innovator in the world” drum.

The second argument, was more troubling to me as a practitioner. This argument, justified the change to a FITF system based upon extreme patent interference statistics. In my opinion, the patent interference argument is a complete red herring.
Continue Reading First Inventor to File vs. First to Invent

S.23 (Manager’s Amendment) Primed for VoteS.23 appears to be on the verge of a Senate vote. Now entitled the “America Invents Act,” a manager’s amendment was offered today to S.23 that introduced quite a few changes. (markup here). In proposing the changes, the Senate was able to strip out some of the more controversial aspects of the bill in an attempt to appease critics.Significant changes include a provision to end fee diversion, as well as some changes to the proposed proposed post grant landscape.The major post grant refinements of the amendment are as follows: -A transitional post grant proceeding (page 9) specific to business methods was added to S.23. This can be thought of as a special window, of limited time (4 year sunset provision) to challenge a business method patent (if sued, or charged with infringement of a qualifying patent).The business method provision also calls out the ability to stay a district court proceeding and codifies the current factor based analysis of the courts. The provision provides for interlocutory appeal of the denial of a stay. Senator Schumer D-NY commented on the floor today that he could not imagine a case that would not be stayed under this transitional program.  So, long story short, if you have a business method patents sue now….otherwise you might be forced to wait out the sunset of this provision.-a further post grant provision was added to clarify that a case cannot be stayed for post grant review is a motion for a preliminary injunction is pending.Other changes of interest, not relating to post grant practice:-Added a provision to discount multi-track program for small entities added by 50%.-Deleted venue and damage provisions (deemed moot by recent court action). Most of the actual floor debate had absolutely nothing to do with patent reform, or the manager’s changes. Instead, several democratic senators sought to include provisions relating to federal spending /debt ceiling, and salary controls for Congress should the gov’t be shut down.The “First Inventor to File” provision remains intact for now, although several Senators paid lip service to this aspect of the bill in anticipation of challenges.Once through the Senate, as seems inevitable now, the House will issue a companion bill, differences will then be reconciled. Senator Leahy stated at one point today that all of this could happen quickly, and a bill should be ready for presidential signature “very soo

S.23 appears to be on the verge of a Senate vote. Now entitled the “America Invents Act,” a manager’s amendment was offered today to S.23 that introduced quite a few changes. (markup here). In proposing the changes, the Senate was able to strip out some of the more controversial aspects of the bill in an attempt to appease critics.

Significant changes include…
Continue Reading Patent Reform Amendments Introduced

Patent Reform, The Next “Big Thing”Since being voted out of committee earlier this month, the Patent Reform Act of 2011 (S.23) has been awaiting floor debate. S.23 was first positioned behind the FAA bill in the legislative queue, and now seems secondary to the budget crisis. Although scheduled for debate on February 28th, it seems

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House and Senate Focus on Moving ForwardThe Senate may begin debate on Patent Reform this week once the FAA Re-authorization Bill is settled. After last week’s hearing in the House, it appears that a second bill will also emerge.During a recent C-SPAN taping, Rep. Bob Goodlatte (R-Va) has indicated that he will be taking the lead for House Republicans on the creation of new patent reform legislation. It seems that the motivation behind the bill is to accelerate the process. Rep. Goodlatte was reported as stating:…..lawmakers are working in a bipartisan, bicameral way to decide which patent reforms can enhance job growth and stand a good chance of passing Congress and being signed into law by the president. Goodlatte said the most likely focus would be on improving the efficiency of the U.S. Patent and Trademark Office by increasing the speed and quality of the patent process. He acknowledged the Obama administration’s recent plan for reforming the process but said legislation would likely be necessary. When asked about his primary concern for any legislation Goodlatte said the patent process is better at handling drugs and other products that use single patents, but less equipped to deal with technology products that often incorporate dozens or even hundreds of patents. (Source: Hillicon Valley 2/13/11)It remains to be seen whether or not a competing bill in the House will truly help refine the issues, or just create more of the same familiar morass of the past few yea

The Senate may begin debate on Patent Reform this week once the FAA Re-authorization Bill is settled. After last week’s hearing in the House, it appears that a second bill will also emerge.

During a recent C-SPAN taping, Rep. Bob Goodlatte (R-Va) has indicated that he will be taking the lead for House Republicans on the creation of new patent reform legislation. It seems that the motivation behind the bill is to accelerate the process. Rep. Goodlatte was reported as stating:…
Continue Reading This Week in Patent Reform

House to Preview Senate Progress on S.23This Friday, February 11, 2011 the House Judiciary IP subcommittee will conduct a hearing on U.S. Patent Reform. The topic of the hearing is “Crossing the Finish Line on Patent Reform – What Can and Should be Done” (link). Witnesses include the chief patent counsels of Intel and General

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Patent Reform Voted Out of Committee

In yesterday’s meeting of the Senate Judiciary Committee, the Patent Reform Act of 2011 (S.23) was voted out of committee to the Senate floor. This is the third time a patent reform bill has been moved to the full Senate since 2008. As the current reform bill is viewed as a compromise, not to mention politically hyped as an economic stimulus, it may be that the third time’s the charm. Certainly, not since since Star Wars Episode III have so many patent professionals (i.e., nerds) been interested in the actions of a Senate.

In yesterday’s webcast of the meeting, there was a significant amount of discussion on potential amendments to the current bill. The most discussed was the concept of a special proceeding to invalidate business method patents. …
Continue Reading Patent Reform Wars: Episode III

S.515 Refined as to New Post Grant Options For those of you lying awake at night wondering what minor word changes have been made in the new patent reform legislation, you may now rest easy. Attached is a mark-up of sections 6 and 7 of S.23 relative ot S.515 (post grant aspects). Additions are shown

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