A patent reform bill set for a Dec. 5 vote in the U.S. House of Representatives has intellectual property groups worried the sweeping language will do more harm than good in solving thorny patent litigation problems.
The Federal Circuit Bar Association on Tuesday sent a letter to House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member Rep. John Conyers Jr. (D-Mich.) to express the group’s concern. Goodlatte sponsored the bill, which has moved swiftly since its introduction on Oct. 23.
The bill is meant to deter so-called “patent trolls” who use patent litigation as a way to get opponents to agree to settlements or to take licenses. Key provisions would raise patent case pleading standards and also make it easier for case winners to get legal fee awards.
The bill is well-intentioned but “neither sufficiently precise nor likely to be effective,” Federal Circuit Bar Association president Patrick Coyne, a partner at Washington’s Finnegan, Henderson, Farabow, Garrett & Dunner, wrote in the letter.
The association is worried the bill’s heightened pleading standards “would add the time and expense of a more intense early motions practice.” Also, language allowing winners to collect attorney fees unless the loser’s position was “substantially justified” would probably lead to satellite fees litigation “which would deter innovative start-ups from enforcing patents,” according to the association’s letter.
Adjusting the Federal Rules of Civil Procedure to require district judges to make specific findings in complex patent cases would be simpler, less disruptive and better meet the needs of the parties, the letter said.
“Our concerns are this isn’t the right bill. It’s moving too fast and there hasn’t been any time to consider the alternatives,” Coyne said in an interview with The National Law Journal.
The association does favor language in the bill requiring the patent office to use the same principles as district courts for claim construction, which is the process for determining the meaning of a patent claim. The current approach “invites inconsistency, inefficiency, and increased costs for the courts, the parties, and the economy,” the letter said.
Other intellectual property organizations also expressed unease about the bill.
The American Intellectual Property Law Association supports the bill’s goals, such as reducing abusive patent litigation, but many provisions “are too broad and too sweeping,” said executive director Q. Todd Dickinson, whose group sent a letter about the bill to congressional leaders on Dec. 4.
“All of this can be fixed, we just need to take the time to do it,” Dickinson said.
The House bill’s fee-shifting language, in particular, is disastrous for inventors without deep pockets, said Alexander Poltorak, founder and president of American Innovators for Patent Reform, a coalition of inventors, companies and licensing executives.
“This will deter any independent, inventor, startup company or university from ever asserting patents,” Poltorak said.
The Intellectual Property Owners Association hasn’t taken an official position on whether it wants members of the House to vote for the bill or not, executive director Herb Wamsley said. In general, he said, the association supports parts of the bill but has qualms about much of the specific language.
That includes the fee-shifting provision and language that generally allows customers to get an infringement case stayed if the manufacturer also faces an infringement lawsuit for the same patent, Wamsley said.
The pending U.S. Senate bill, the Patent Transparency and Improvements Act, introduced by Sen. Patrick Leahy (D-Vt.), has the backing of the White House. It was introduced on Nov. 18 and referred to the Senate Judiciary Committee.
“We hope that the best of the two bills can be melded into an acceptable bill,” Wamsley said.
Contact Sheri Qualters at email@example.com.