Whitehouse Dubious About Patent Bill Chances This Year

Tue. May 6, 2008


An early proponent of legislation that would overhaul the U.S. patent system told a high-tech trade group today that the bill is basically dead in the 110th Congress. Sen. Sheldon Whitehouse, D-R.I., a freshman member of the Senate Judiciary Committee, said it is unlikely Majority Leader Reid will give up floor time for the controversial measure "unless it's a sealed deal." The House passed a companion bill last September. Judiciary Chairman Patrick Leahy "did a wonderful job" on the measure, which he introduced a year ago, but opponents left him with "no maneuvering room" and lengthy negotiations with Judiciary ranking member Arlen Specter broke down, Whitehouse said. Leahy said last month that "just a handful of words" -- namely proposed changes in how damages are awarded in infringement lawsuits -- stalled the measure. But neither he nor Specter has conceded that the bill is officially off the table.

"The modernization of the patent system that this bill represents is overdue, and its failure this year says nothing about its likelihood next year," Whitehouse said at the Computer and Communications Industry Association's annual Washington Caucus. The measure "should and must be revisited," he added. Specter told the group that significant progress has been made on damages language, but that "we're still not there yet." The legislation's proposed broadening of the process for handling "inequitable conduct" cases, which would require patents to be ruled invalid if plaintiffs were not forthcoming in their applications, remains a thorny issue. "It's a very difficult balance as to how much proof somebody ought to have to show to get into court," Specter said. "Once you're in court, you have discovery, and that's enormously expensive and can blackjack a lot of settlements." Sen. Tom Coburn, R-Okla., told CCIA that he is not convinced of the bill's demise for this year. "I think there's still some behind-the-scenes negotiating going on," said Coburn, but he added, "The first thing we should do is 'do no harm' and I'm really fearful we night do some harm."

Rep. Anna Eshoo, D-Calif., spoke earlier about another potentially doomed effort in this Congress: revamping U.S. immigration laws. She said she believed the effort will not succeed in the near-term because it has become "one of the great political footballs" on Capitol Hill and a prominent talking point on the presidential campaign trail. Eshoo, whose district is in the heart of Silicon Valley, wants to lift the cap on H-1B visas for foreign workers.

by Andrew Noyes