A proposed patent reform bill has been delayed once again by the Senate Judiciary Committee, suggesting it is getting harder to work out a compromise, or that one is likely after the spring recess.

The committee’s chairman, Sen. Patrick Leahy, (D, Vt.) has put the best spin on the fourth recent delay for his bill called the “Patent Transparency and Improvements Act,” which attempts to control patent trolls and cut down on other abuses.

“For weeks, members of the Judiciary Committee have been engaged in extensive bipartisan negotiations on legislation to address abuses in the patent system,” he said in a statement released on April 9. “We have made enormous progress, and we now have a broad bipartisan agreement in principle.  This is a complex issue and we need additional time to draft the important provisions that have been the subject of discussion.” 

He claims the committee will consider the legislation in a meeting that is now scheduled to take place during the week after the two-week recess.

“I have talked to many Senators on both sides, and because I want to be sure everyone is comfortable with how these pieces fit together, I will circulate a manager’s package the day we return from recess,” Leahy added.

The Hill has reported the committee is trying to work out agreeable language on fee-shifting, which would force the losing side on an “unreasonable patent infringement lawsuit” to pay for the legal fees incurred by the winning side. It appears many Republicans back such a proposal, especially Sens. John Cornyn (R-Texas) and Orrin Hatch (R-Utah), though Democrats are largely opposed to it, news reports said.

Sen. Chuck Grassley (R-Iowa), who is the ranking Republican on the committee, said that overall there is “a tentative agreement in principle.”

“It’s a time-consuming and challenging process that will result in a much better product,” he was quoted by the newspaper regarding the current negotiations. The House of Representatives, meanwhile, has already approved a patent reform bill.

There was speculation last week that the Senate delay in the markup of the patent reform bill could relate to the formation of new industry organization called the “Partnership for American Innovation (PAI).” The organization was formed by such business giants as: Apple, DuPont, Ford, GE, IBM, Microsoft and Pfizer. Former U.S. Patent and Trademark Office (USPTO) Director David Kappos, who now works at Cravath, Swaine & Moore, was named as “a senior advisor” to PAI. In a statement, Kappos warned, “Now is not the time to gamble with America’s innovation engine — once patent protections are eliminated, they cannot be restored.”

“It is in our country’s best interest to have a patent system that rises above short-term interests, and creates long-term gains for all sectors of the economy. We must move beyond rhetoric that ‘the system is broken and trolls are bringing businesses to a complete halt’ to a discussion of calibrated improvements for what is actually the best patent system our planet has,” Kappos added.

InsideCounsel also reported that there are concerns being voiced by both pro-business and pro-consumer groups over current proposals in Congress that try to reform the sometimes unwieldy patent system. 

In an interview on Thursday, American Intellectual Property Law Association (AIPLA) Executive Director Todd Dickinson, said the delays in the Senate “are caused by the challenges of getting it right.”

“A lot of interests weren’t all heard from previously in the House debate,” Dickinson added. “Getting that right has taken up a lot of time and energy.”

He confirms that fee shifting remains a key area of difference, and pointed out that during the House debate an amendment on fee shifting failed only by 14 votes.

“The reports are they [Senators] struck the compromise in principle and now it’s down to the details,” he said.

What may be making the resolution more difficult is that groups that traditionally have not weighed in on patent reform want to be heard this time. For instance, trial lawyers have positions on fee shifting, or, small retailers and restaurant owners want to see limits on demand letters sent out by lawyers. These interests have stronger lobbies in Washington, D.C. High-tech companies, meanwhile, are also weighing in on the bill.

There was also speculation that the bill was ready to go forward on Thursday, but some Senators wanted more time to examine the provisions – particularly among the Democrats.

The challenge likely will be to come up with a workable compromise – or patent reform may not get approved this spring.


Further reading: 

Could patent reform bill delay in Senate relate to formation of new industry organization?

Senate urged to improve proposal on patent reform

Patent litigation shows sharp decline this year