After nearly a year of being put on ice, patent reform is back in Congress.
House Judiciary Chairman Bob Goodlatte on Thursday will reintroduce White House-supported legislation that aims to reduce predatory patent litigation — better known as “patent trolling.”
The Virginia Republican is reviving the same bill that cleared the House with overwhelming bipartisan support last Congress, according to sources familiar with the language.
The legislation is widely expected to again face little resistance in the House, where it passed on a 325-91 vote a little more than a year ago. Goodlatte rushed the language through the lower chamber in just 43 days, a pace so quick that even the bill’s opponents now openly concede they were caught off-guard.
Despite the bill’s popularity in the House, the upper chamber was unable to advance patent reform, as months of negotiations ultimately crumbled in the Senate Judiciary Committee.
Goodlatte’s omnibus package would do many things to change patent litigation, including a requirement that plaintiffs be more specific in their lawsuits. It would also require more transparency regarding patent ownership, reduce discovery costs, and protect so-called end users, such as coffee shops that buy a patented product from another vendor, from infringement claims.
Dubbed the Innovation Act, the bill is one of the top congressional priorities of a wide swath of tech companies, startup businesses and retailers, a diverse coalition that claims patent trolling — the practice of acquiring warehouses of patents and using them to siphon cash from inventors by threatening infringement lawsuits — leaches billions from the economy annually and serves to undercut the entrepreneur economy.
Stakeholders that oppose broad patent reform — including biotech companies, big pharma, trial lawyers and some universities — argue that Congress should be cautious about overcorrecting a patent system that just went through a legislative overhaul with the passage of the 2011 America Invents Act.
Reform advocates dismiss those claims as meritless stalling tactics, but the “wait and see” caucus have more talking points in their arsenal following several decisions by the Supreme Court over the past year that tweaked the patent litigation system.
But action in the House will likely serve as merely an opening act for the Senate, where negotiations over a series of wonky provisions could again derail reform efforts. Reformers see reason for optimism this year — chief among them being the Republican takeover of the Senate.
Last spring, then-Senate Majority Leader Harry Reid was widely blamed for killing patent reform just as a bipartisan compromise began to emerge in his chamber following months of negotiations led by Judiciary Chairman Patrick Leahy and Sens. Chuck Schumer, John Cornyn, and Orrin Hatch. Reid, according to numerous sources on both sides of the aisle, told Leahy he wouldn’t bring any patent bill to the floor because it likely would have split the Democratic caucus. Of particular concern were grievances trial lawyers had with the bill, as they are a main Democratic constituency.
Still stinging from Reid’s block, patent reformers say that Republican control of the Senate has opened a door for their cause. And they believe Judiciary Chairman Chuck Grassley, who is expected to take over the Judiciary Committee from Leahy, will make patent reform an early priority for a Congress desperate to find legislation that can earn bipartisan support. Grassley has indicated patent reform is a priority in his committee but he has not yet outlined a timetable for moving forward.
Republicans won’t be as swayed by trial lawyers, but the party has traditionally been more sympathetic to the concerns of pharmaceutical and biomedical companies. One tech lobbyist called their lobbying power the “800-pound gorilla” that is most likely to thwart reform efforts this Congress.
Despite the challenges, Silicon Valley still considers patent reform a top priority in the current cycle — and one of only a few policy areas where it has a realistic shot at success.
Goodlatte aides would not say how many co-sponsors the Innovation Act had tallied so far. But aides did say the Judiciary subcommittee on intellectual property, chaired by Rep. Darrell Issa, would hold a hearing next Thursday to examine recent court cases dealing with patents, including a spate of Supreme Court decisions handed down last term.
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