Patent troll legislation is moving forward in the House, but a marathon markup and a string of amendment battles underscored the measure’s uncertain path to becoming law.
The House Judiciary Committee on Thursday passed 24-8 the Innovation Act, a measure that aims to clamp down on so-called “patent trolling” by changing several aspects of how patent-infringement cases are litigated. The vote comes just a week after the Senate Judiciary Committee easily passed a similar bill, though observers say significant differences remain between the two measures.
House Judiciary Chairman Bob Goodlatte shepherded the “Innovation Act” through a marathon markup that included the adoption of several amendments, including a manager’s package that caused some last-minute jitters among some stakeholders supportive of the measure before other tweaks were also accepted. Other amendments were deferred for later consideration, with Goodlatte promising they would earn debate as the bill moves to the House floor.
Seven Democrats, led by ranking member John Conyers, voted against Goodlatte’s bill, arguing that the Senate’s legislation offered a more balanced approach. Rep. Louie Gohmert of Texas cast the lone Republican vote against the Innovation Act.
Though the Innovation Act passed the House 18 months ago in a landslide, opponents of sweeping changes to patent law are more mobilized now—and they don’t appear ready to quit their efforts. The swiftness of the bill’s passage last Congress surprised some groups that oppose the proposal, including universities and pharmaceutical companies. The opposition regrouped and succeeded in stalling efforts in the Senate, and they continue to lobby both chambers for additional changes.
After Thursday’s vote, Goodlatte disputed that getting the Innovation Act out of the committee was more difficult this time around. “We had a long amendment markup last time, and we actually did not markup that bill until we were into the second year of that Congress, so in that sense we’re way ahead of the schedule we had last time,” Goodlatte told reporters. “It’s good because we have time to work on it going to the floor and with the Senate.”
Senate Majority Whip John Cornyn, one of the chief backers of patent reform in the upper chamber, said there was “no specific timetable” for moving forward with the Patent Act, which cleared the Senate Judiciary Committee 16-4 last week. When asked if the bill could earn consideration this summer, Cornyn smiled before offering,” I would like to see it sooner rather than later.”
“We’re interested to see what the House is going to do and recognizing we need to reconcile the differences with them if we’re going to get something to the president’s desk,” Cornyn told National Journal Thursday. “It’s one of those things available to the majority leader when we have time.”
A particular fault line between the two chambers continues to be provisions involving so-called fee-shifting, or the principle of making it easier for winners of frivolous patent infringement suits to force the losing party to pay for legal fees. Attempts by Democrats to weaken the Innovation Act’s fee-shifting standard—in a bid to align it more with the Senate bill and satisfy trial lawyers—came up short Thursday, setting up a potential showdown between House and Senate.
The House panel did adopt an amendment, authored by GOP Rep. Darrell Issa, that tweaked the bill’s venue provision. Issa, who chairs the panel’s subcommittee on intellectual property, said the measure was necessary to prevent “unreasonable venue-shopping,” taking time to call out the Easter District of Texas, which is often blamed for siding with trolls who go out of their way to file infringement suits in that friendly court.
“The idea that that many should be concentrated in any one district or any one judge “¦ shows there is a need to get appropriate venue,” Issa said.
But Issa failed to collect enough support behind another amendment he and Rep. Judy Chu offered that would have extended a U.S. Patent and Trademark Office audit program (known as “covered business method review”) from its current 2020 expiration through 2026. Start up groups and Internet companies favor both an extension and additionally an expansion of the program—which currently affects only financial services patents—to include software patents as well. Other large tech companies, including Microsoft and IBM, staunchly oppose CBM expansion on grounds it could undermine legitimate intellectual property rights.