As the House Judiciary Committee launched expedited hearings on a comprehensive patent reform bill on Tuesday, the former director of the U.S. Patent and Trademark Office had a different message: “Proceed with caution.”
David Kappos, now a partner at Cravath, Swaine & Moore’s New York office, warned during a committee hearing that the Innovation Act, introduced last week, comes just two years after the Leahy-Smith America Invents Act and “writes on a page whose ink is barely dry.”
Because it takes many years between a new patent application and any court decision about its validity, Kappos said, any overcorrection would pose a “major danger.”
“In such long-time constant situations, every engineering instinct and every leadership instinct tells me: Proceed with caution,” Kappos said. “By the time an overcorrection is apparent, it will be years after the system is badly damaged.”
Rep. Bob Goodlatte (R-Va.), author of the bill and chairman of the judiciary committee, insisted that his bill would solve immediate problems that have damaged the nation’s patent system and economy. Its provisions “go to the heart of current abusive patent litigation practices,” he said. “The patent system was never intended to be a playground for litigation extortion and frivolous claims.”
The Innovation Act is the latest of a number patent reform bills filed this session, but has as co-sponsors from both parties and the support of Goodlatte, who said he is working closely with Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee.
The Capitol Hill hearing room was overflowing with lobbyists and business representatives, and a number of lawyers testified in support of the Innovation Act, including Kevin Kramer, deputy general counsel for intellectual property at Yahoo! Inc., and Krish Gupta, deputy general counsel at EMC Corp., headquartered in Massachusetts.
“By taking a narrow focus on the problems plaguing the current system, the bill will help reinstate the balance and transparency necessary to ensure that the U.S. remains the most innovative and competitive country in the world,” Gupta said in his written remarks. “EMC believes that patent litigation is an effort whose time has come.”
The bill would raise the threshold for filing a patent infringement case; plaintiffs would have to identify the patents at issue and detail exactly how they are infringed, according to a breakdown of the bill provided by the committee staff. The legislation would allow courts to join parties with interests in the patent in any case and allow judges to limit discovery pending claim construction.
Democrats have “some real concerns” with some of the bill’s provisions, said Rep. Mel Watt (D-N.C.) “We run the risk of enacting measures that could not only be ineffective, but could exacerbate the current problems or invite new unintended problems,” he said.
Rep. John Conyers (D-Mich.), lead Democrat on the committee, said he did not understand why the legislation addresses fee shifting when the U.S. Supreme Court has just agreed to take up that issue. He also saw no reason for the rush to expand the use of “business method patents” given that the PTO and the courts just now are beginning to review cases under the America Invents Act.
Contact Todd Ruger at email@example.com.