Senate Judiciary Chairman Patrick Leahy, D-Vt., took to the Senate floor Wednesday to urge his colleagues to pass sweeping patent reform legislation without further amendments.
“Any amendment would force reconsideration by the House and more unnecessary delay,” Leahy said. “Patent reform legislation has been debated exhaustively in both the Senate and House for the past four Congresses. It is the product of dozens of hearings, and weeks of committee markups. We should proceed to the bill and pass it.”
Tuesday night the Senate voted 93-5 to move ahead with final debate on the America Invents Act (H.R. 1249), which would enact changes to the U.S. patent system by altering the Patent and Trademark Office’s fee system and creating a “first-to-file” system, under which patents would be awarded to the first person to file an application.
When asked by reporters on Wednesday if he would support any amendments to the patent bill, Leahy said "no." As of Wednesday evening, no amendments had been called to the floor.
Sen. Tom Coburn, R-Okla., has said he will fight to reinstate language that would prohibit Congress from using Patent and Trademark Office fees for other programs and he filed an amendment aimed at doing just that. That provision, originally approved overwhelmingly by the Senate, went on to be watered down by House appropriators.
“Unfortunately, the House gutted my amendment after negotiations with the House Appropriations Committee,” Coburn wrote in a commentary for the National Review Online on Tuesday. “The appropriators are insisting, of course, that they have no intention of diverting fees. History suggests they are not to be trusted.”
If his amendment fails this time, Coburn promised to do “everything in my power to slow the bill and highlight this egregious tax on innovation.”
Coburn is joined in his criticism by many smaller companies that want an end to such "fee diversion" and worry the bill could loosen some protections. But it is unclear whether opposition will be enough to derail the legislation.
While many in the patent and business community would support Coburn's effort to end fee diversion, most would not want the bill delayed while a compromise is hammered out, said Paul Devinsky, a partner in the law firm of McDermott Will & Emery LLP. Still, he noted, the opposition could have political impact.
"Although the House version of patent reform legislation is likely to pass intact, the latest attempt to impose an amendment will likely prevent the bill from being a 'mission accomplished' passage in the president's speech before both houses of Congress tomorrow night," Devinsky said.
Despite significant debate, the bill has already passed both the House and Senate by wide margins, and other groups are urging Congress to pass the bill as-is and send it to President Obama.
“The Senate and the House have spent years of work crafting this important legislation, and we believe there is no more balancing or compromising left to do,” IBM said in a letter to lawmakers.
More than a dozen trade groups, including the American Bankers Association and the Financial Services Roundtable plan to send a letter to lawmakers on Thursday playing down differences between the House and Senate bills.
"We would like to voice our support for the bill without amendment and encourage you to send this important legislation to the President’s desk to be signed into law. H.R. 1249 is substantially similar to the patent reform bill, S. 23, the Senate passed earlier this year by an overwhelming 95-5 vote," according to the letter, obtained by National Journal.
And the Coalition for 21st Century Patent Reform, which includes companies like 3M, Caterpillar, and General Electric, also called on the Senate to pass the bill without further amendments.
Juliana Gruenwald contributed