Leahy Procedural Move Makes Patent Reform Passage Near

Senator Patrick Leahy (D-VT), Chair of Judiciary Committee

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) recently came to agreement with Committee Ranking Republican Jeff Sessions (R-AL) on changes to the Patent Reform Act of 2009 (S. 515), winning Senator Sessions’ support for passage and making it extremely likely that patent reform will happen this year, and likely very soon. An individual involved in the ongoing patent reform debate on Capitol Hill tells me that the Leahy-Sessions language would substitute for the Committee-passed language, and then be considered by the Senate as a whole. This is an important procedural step toward passing patent reform, and could mean that patent reform will be passed by the full Senate any day now. Leahy’s procedural move is called a “hot line”, in which Senate Majority Leader Harry Reid (D-NV) will ask all Senate offices for unanimous consent to proceed to the bill, substitute the new language, and consider it passed.

A “hotline” is the term used for a request to Senators to agree to allow a bill or resolution to be considered approved by the Senate without debate. A measure that is “hotlined” is recorded in the Congressional Record as a being agreed to by unanimous consent. Some hotlines can include amendments but limit debate and discussion and do not require individual votes on the amendment or the underlying bill.  If an office has an objection to the bill being hotlined, they are asked to call the leader’s office and state that they would like to object to the bill being passed by unanimous consent. Thus, instead of requiring explicit unanimous consent to pass a bill, the hotline process really only requires a lack of dissent. The process of notifying the leader’s office of such dissent is informally referred to as a “hold.”  In some Senate offices, the request for unanimous consent may never even reach Senators, and the decision to allow a bill to be approved without debate is determined by staff. Staff may also place a hold on a bill without the knowledge of a Senator.  See Holds and Hotlines: How a Single Senator Can Block Consideration of a Bill and the Senate Passes Bills Without Votes.

In a letter dated April 20, 2010, addressed to both Senator Leahy and Senator Sessions, Commerce Secretary Gary Locke explained that President Obama strongly supports patent reform efforts and would like to see the bill brought to the floor of the Senate and passed this year. Locke’s letter states:

As expressed in my letter to you of October 5, 2009, the Obama Administration strongly supports your efforts to achieve such reforms and is committed to working with members of both houses of Congress to bring these efforts to fruition as you seek to bring a bill to the Senate floor. Regardless of any issues that remain under discussion, there is a consensus that a strong patent system, including an appropriately funded and well-functioning United States Patent and Trademark Office (USPTO), fosters innovation that drives economic growth and creates jobs.

After then going briefly through several of the key provisions of S. 515, Secretary Locke concludes:

The Administration is eager to see patent reform enacted this congressional session. To this end, we would be pleased to work with you and members of the House and Senate to arrive at a final bill for passage.

The National Journal reported last week that Senator Leahy is seeking floor time for consideration of S. 515, and hopes that it will be taken up by the full Senate prior to Memorial Day.  The National Journal report mentions a number of other priorities facing the Senate, so the fact that Leahy is now seeking to have patent reform hotlined suggests that he may not have been able to obtain any time for the Senate to take up patent reform this year and the only chance of passing it would be to have it done through a unanimous consent procedure and without any debate.

A bill is hotlined at the discretion of the Majority Leader in consultation with the Minority Leader.  The aforementioned source on Capitol Hill explained to me that the hotline request has already gone out to Democrat Senators, and a similar request is expected sometime this week to be sent from Republican Minority Leader Mitch McConnell (R-KY) to Republican Senators.  So stay tuned.  We could have passage of patent reform in the Senate in very quick order.