Darrell Issa May Revive Controversial Patent-Troll Measure

The new chairman of the House’s intellectual-property subcommittee likes the Innovation Act—but that doesn’t mean he won’t try to change it.

Issa: Continues gun-running probe.
National Journal
Feb. 5, 2015, 9:25 a.m.

As Cap­it­ol Hill braces for an­oth­er round of pat­ent-re­form de­bates, Rep. Dar­rell Issa won’t rule out bring­ing back a con­ten­tious pro­vi­sion that was left on the cut­ting-room floor in the last Con­gress.

Issa, who now wields the gavel on the House Ju­di­ciary Com­mit­tee’s Courts, in­tel­lec­tu­al Prop­erty, and In­ter­net Sub­com­mit­tee, is one of 19 ori­gin­al co­spon­sors signed on to the In­nov­a­tion Act, a pat­ent-re­form bill that was in­tro­duced Thursday.

But while the Cali­for­nia Re­pub­lic­an said he fully backs the bill, he also said he would still look for areas to im­prove it — an ef­fort that could in­clude re­viv­ing lan­guage that would ex­pand the U.S. Pat­ent and Trade­mark Of­fice’s abil­ity to re­ject low-qual­ity pat­ents.

“One of the hear­ings that I’ve tent­at­ively sched­uled — and we’ll hold that be­fore the markup — will be on the ef­fect­ive­ness of the cur­rent law,” Issa told Na­tion­al Journ­al, re­fer­ring to a hear­ing he plans to hold next week. “I’m go­ing to use the hear­ing pro­cess to fur­ther people’s un­der­stand­ing, and that’s when we’ll fig­ure it out.”

Issa, him­self a pat­ent-hold­er, pushed to in­clude lan­guage in the In­nov­a­tion Act last Con­gress that would have broadened the “covered busi­ness meth­od” re­view pro­gram to in­clude soft­ware pat­ents. Cur­rent law, en­shrined in the 2011 Amer­ica In­vents Act, al­lows only non-tech­no­lo­gic­al fin­an­cial-ser­vices pat­ents to be eli­gible for the audit.

But a num­ber of blue-chip tech com­pan­ies, in­clud­ing IBM and Mi­crosoft, waged a full-throated cam­paign against Issa’a pro­pos­al, which was also strongly backed by Demo­crat­ic Sen. Chuck Schu­mer. They warned that rais­ing the bar too high for soft­ware pat­ents would kill Amer­ic­an in­nov­a­tion, and they vowed to drop sup­port for the In­nov­a­tion Act un­less the “pois­on pill” was scrubbed.

The gam­bit worked, and the meas­ure was dropped, clear­ing the way for the House’s pas­sage of the In­nov­a­tion Act on a 325-91 vote. The ver­sion re­in­tro­duced Thursday is the same as the one that cleared the cham­ber last time.

Some of the most ar­dent pro-re­form stake­hold­ers, in­clud­ing those rep­res­ent­ing the tech start-up scene, have said that ex­pand­ing the re­view pro­gram to in­clude soft­ware pat­ents is the most im­port­ant thing Con­gress can do to stem the tide of pat­ent trolling — the act of stock­pil­ing pat­ents in or­der to use them to leach money from in­vent­ors by threat­en­ing in­fringe­ment suits. The oth­er re­forms, they ar­gue, won’t be as ef­fect­ive in cur­tail­ing pred­at­ory pat­ent lit­ig­a­tion.

The idea ul­ti­mately proved too tox­ic for House Ju­di­ciary Chair­man Bob Good­latte, who shelved it dur­ing the markup pro­cess. Now, even some back­ers of the pro­vi­sion warn that it’s not worth the firestorm that would erupt if it’s brought up again.

“I’m al­most re­luct­ant for it to come back, be­cause it just cre­ated such a big dis­trac­tion,” one pro-re­form ad­voc­ate said. “To be hon­est, I don’t think it’s got the sup­port in the Sen­ate.”

Asked spe­cific­ally about the pro­spects for bring­ing covered busi­ness meth­od ex­pan­sion back, Good­latte on Thursday said he and his col­leagues were open to dis­cuss­ing any ideas on how to tinker with the In­nov­a­tion Act — but he quickly tempered that bon­homie.

“I wouldn’t de­clare any­thing dead,” Good­latte said dur­ing a press con­fer­ence re­in­tro­du­cing the In­nov­a­tion Act. “On the oth­er hand, we have a product that has been very care­fully honed,” and any new change “has to add to the large co­ali­tion we have, not take away from it.”

After Good­latte’s com­ments, Issa sug­ges­ted he might not seek an ex­pan­sion of the re­view pro­gram but in­stead pro­pose nar­row­er lan­guage that would merely ex­tend the length of it. Cur­rent law will have the re­view pro­gram sun­set in 2020.

“Ex­ten­sion is prob­ably a good com­prom­ise between killing it and ex­pand­ing it,” Issa said after the press con­fer­ence.

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