Patrick Leahy (D-Vermont), right, and Charles Grassley (R-Iowa), left, during a Senate Judiciary Committee hearing in 2012. (Photo: Diego M. Radzinschi/THE NATIONAL LAW JOURNAL)
The Senate Judiciary Committee needs to approve a patent reform bill this week—with broad bipartisan support—to give it a good chance of becoming law during this Congress, a former top intellectual property adviser to the committee said.
Congress on April 14 begins a two-week recess and, as the November elections inch closer, legislative activity on Capitol Hill will soon slow down, said Aaron Cooper, a Covington & Burling special counsel who formerly advised Senate Judiciary Chairman Sen. Patrick Leahy, D-Vt., on intellectual property issues.
“I don’t think it absolutely has to be done before this recess but I think time certainly is running out on this Congress,” Cooper said. “If it doesn’t come together, it doesn’t mean it won’t ever come together, it just makes it more difficult.”
Cooper joined Covington in November after working the past seven years on the committee, including primary responsibility for all aspects of the last big patent reform law, the Leahy-Smith America Invents Act, which was adopted in 2011.
The Judiciary Committee was set to meet this afternoon to discuss the leading bill, the Patent Transparency and Improvements Act. Leahy in November introduced the measure with co-sponsors Mike Lee, R-Utah; Sheldon Whitehouse, D-R.I.; and Amy Klobuchar, D-Minn.
Leahy announced today that the hearing will not happen as scheduled because Republicans have not yet given feedback on a proposal about “a few contentious issues” circulated Monday by Sen. Chuck Schumer, D-N.Y.
“I hope we can come to a bipartisan agreement by the end of the day so that we can mark up my Patent Transparency and Improvements Act on Thursday morning,” Leahy said in a written statement. “The executive business session noticed for this afternoon will be postponed until Thursday morning.”
The committee had hoped to move on the bill last Thursday. But committee members are still working on the language for several key provisions that include pleading requirements and shifting legal fees. “We’re not quite there yet,” Sen. Chuck Grassley, R-Iowa, the top Republican on the committee, said last week.
“Getting the bill right is just as important as moving it,” Grassley said. “I hope that we can come together and produce language that a large majority of us can support.”
Cooper said such a consensus—and not just a 10-8 vote to get it out of committee—would help give the bill momentum to get to the Senate floor. A close vote in the committee could signal that interest groups are dissatisfied and could try to influence the other 82 senators—potentially stalling the legislation.
“As we get closer to the end of a Congress, having a bill that is out of committee and ready to go to the floor, supported in the form it was supported in the committee, shows most of the major issues have been worked out,” Cooper said.
Committee members have expressed optimism that the bill’s language can balance a number of competing interests—without becoming watered down—in the fight against so-called “patent trolls” and allegedly frivolous intellectual property cases.
There are a number of moving parts, in addition to committee negotiations, that could impede any attempt to swiftly push through patent reform legislation. Among them: the formation of a new group, The Partnership for American Innovation, which includes Apple Inc., Ford Motor Co., General Electric Co. and other major companies.
The group’s senior adviser is former U.S. Patent Trademark Office director David Kappos, a partner at Cravath, Swaine & Moore. Kappos has warned against Congress moving too quickly and too broadly on patent reform.