When the Patent Reform Act of 2011 reaches the Senate floor on Monday, analysts predict it will face amendments seeking to strip away some of the bill's most controversial proposals.
Now lobbyists familiar with discussions about the legislation say Senate Majority Leader Harry Reid, D-Nev., may support or even cosponsor a likely amendment by Sen. Diane Feinstein, D-Calif., which would remove a provision that would grant patents on a "first to file" rather than "first to invent" basis.
Under the bill, which is sponsored by Judiciary Chairman Patrick Leahy, D-Vt., if a certain product is almost simultaneously invented by separate people, patent protection would be awarded to the first applicant to file for a patent on the product, rather than whoever is determined to have actually invented the product first.
Feinstein's amendment was briefly discussed but not voted on when the bill was approved by the Judiciary Committee in January.
Reid, who has not publicly weighed in on one side or another, has been lobbied for years by groups in his home state of Nevada, said Tim Casey, a partner at SilverSky Group, a Reno-based intellectual property firm.
"Despite all the casinos, 95 percent of Nevadans are employed by small businesses," Casey said. "The first-to-file change could likely have a greater impact on small businesses than any other part of that legislation. And Senator Reid has been pretty aggressive in seeking input from his state on this issue."
Casey said he met last week with Reid staffers and he welcomed any potential support from the senator. A Reid spokesman did not immediately respond to a request for comment.
Some small businesses have argued that they rarely have the resources or money to rush to the U.S. Patent and Trademark Office, which means a first-to-file system gives larger companies an advantage. On Wednesday several small business associations sent a letter to Reid and the rest of the Senate specifically targeting the first-to-file proposal in Leahy's bill.
Other likely amendments include measures that would allow the Patent and Trademark Office to keep all its fees, as well as restrict so-called business-method patents.
Despite the criticism, Leahy insists the bill enjoys broad support, touting a long list of companies and associations that have signed on to the measure.
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