Posts Tagged: "Congress"

House Judiciary approves Innovation Act despite clear lack of consensus

Dissent among members of Congress on the nature of the Innovation Act was evident from the opening remarks of the committee’s two ranking members. Congressman Bob Goodlatte (R-VA), the House Judiciary Committee Chairman and the Innovation Act’s major sponsor, stated that the Innovation Act would “ensure that the patent system lives up to its constitutional underpinnings” while targeting the abusive patent litigation which has been central to the debate on patent trolls. The ranking Democratic member of the committee, Congressman John Conyers (D-MI), said the bill was overly broad and yet it didn’t adequately address issues significant to this debate, including abusive demand letters and the ending of fee diversions from the U.S. Patent and Trademark Office’s budget.

Patent Reform 101: A comparison of current fee-shifting language

Goodlatte was incredulous, explaining that he sees no substantive difference between the language in the Innovation Act and the language in the PATENT Act. The difference between the House bill and the Senate bill boils down to the presumptions made and who will wind up bearing the burden of proof. Congressman Goodlatte is sophisticated and knowledgeable. Surely he has to understand both that there is a difference and that the difference is meaningful.

Strict venue provisions for patent litigation added to Innovation Act

Issa’s amendment changes the language so that a party bringing a patent infringement suit where the defendant has its principle place of business, where the defendant has a physical presence, or where the patent owner has a meaningful physical presence due to research and development or manufacturing. At first glance these venue provisions seem reasonable because they would curtail the extreme forum shopping that does go on in patent cases, as witnessed in the Eastern District of Texas. On closer consideration, however, this provision could create problems for those patent owners who are not bad actors that seek to abuse the system or take advantage by only filing in favorable, remote forums.

Amendment to extend CBM defeated in House Judiciary Committee

One of the issues that took up a significant amount of time during the first half of the hearing was the proposed extension of the transitional program covered business method review. The amendment submitted by Congressman Issa (R-CA) sought to extend CBM by pushing back the sunset period until December 31, 2026. The Issa amendment to extend CBM was defeated by a vote of 18-13.

House Judiciary to Markup Innovation Act this Week

The House Judiciary Committee will hold a hearing on Thursday morning, June 11, 2015, at 10am ET in order to markup the Innovation Act. The Manager’s Amendment is currently available on the hearing webpage. Additional proposed amendments by Judiciary Committee members are excepted to come in and be posted sometime later today. While a markup of this legislation has been rumored numerous times only to be postponed, it seems that this hearing will go forward. It is widely expected that the Innovation Act will easily clear the House Judiciary Committee. The resulting bill with whatever amendments may be approved may move quickly to the full House of Representatives for a vote.

Don’t Pull Up the Ladder: Congressional Inventors Should Oppose Weakening Patents

The need for Rep. Issa’s company to enforce its rights reminds us that inventors and small businesses often have to protect their patents through litigation. But the patent legislation supported by Rep. Issa will make it much harder for all patent owners to protect their rights, imposing extensive financial and procedural burdens that go far beyond what is necessary (or helpful) to curb abusive litigation practices. Whereas true patent reform should be a scalpel, this patent legislation is a sledgehammer. All legitimate inventors and startup companies, like Reps. Issa and Massie, are treated as acceptable collateral damage in the effort to eliminate the handful of bad actors who file nuisance lawsuits.

Vocal minority cannot keep PATENT Act from passing Senate Judiciary

At the end of a three-hour long hearing held by the U.S. Senate Committee on the Judiciary this Thursday, June 4th, S.1137, the proposed legislation known as the PATENT Act, was approved to move to the floor of the United States Senate by a 16-4 vote of the Senate committee. Proponents of the bill lauded the bipartisan support which brought the bill committee approval. Interestingly, a small but vocal bipartisan minority has developed, a couple of whom have pledged to continue debate aspects of this legislation which they fear will pose a threat to American innovation.

Senators mistaken, IPRs do not frustrate Hatch-Waxman

Senators repeatedly brought up the Hatch-Waxman legislation. One after another Senators discussed how inter partes review (IPR) of pharmaceutical patents at the United States Patent and Trademark Office (USPTO) has, in an unanticipated way, upset the delicate balance reached in Hatch-Waxman to ensure that generic drugs would come to market quickly. Those familiar with IPR and Hatch-Waxman will undoubtedly recognize that this concern is entirely misplaced. A successful IPR would result in the immediate death of patent claims, which would inure to the benefit of all generics, which would in fact result in generics entering the market quickly.

Senate Judiciary Committee to Markup PATENT Act

According to Grassley’s office, the amended PATENT Act will provide important reforms for the way that the Patent Trial and Appeals Board (PTAB) of the United States Patent and Trademark Office (USPTO) operates. For instance, the managers amendment would: (1) Require the PTAB to apply the claim construction standard used in federal district court (i.e., the Phillips standard) and further requires the PTAB to consider if claims have previously been construed in district court. (2) Makes explicit that for purposes of PTAB adjudications patents are presumed to be valid, although does so retaining the current law providing that the petitioner has the burden to prove a proposition of unpatentability by a preponderance of the evidence. (3) Makes clear that the Director has discretion not to institute an IPR or PGR if doing so would not serve the interests of justice. (4) Allows patent owners to submit evidence in response to a petition to institute an IPR or PGR, and petitioners to file a reply to respond to new issues. (5) Directs the PTO to modify the institution process so that the same panels do not make institution and merits decisions. (6) Directs the PTO to engage in rulemaking in order to institute a Rule 11-type obligation in IPR and PGR proceedings.

The Ups and Downs of the Innovation Act of 2015

Strong patent protection is almost universally considered critical to robust innovation. Venture capital and private investment in new technology-based businesses heavily depend upon it. Yet, the Innovation Act is positioned to significantly reduce the value of patents by making the risk of enforcement prohibitively high.

Senators Booker, Hoeven draw up bipartisan bill promoting commercial drone use

The proposed bill comes as welcome news to large companies like Google and Amazon which have been looking for ways to start developing beyond line-of-sight flight plans and other complex operations. The rules may, however, be less well suited for smaller UAV innovators. As an article published by Motherboard points out, the Booker/Hoeven legislation will require commercial drone operators to register for a license whereas currently allowable commercial drone operations operate in a non-licensed legal grey area. The undisclosed registration fees that would be put in place for licensing is also a cause for concern among small commercial players with limited financial resources.

If patent reform goes wrong

A truism in politics is that issues are driven by stories. One of the most successful is the saga of the patent troll. That’s driving the current debate creating a sense of a malfunctioning patent system which is a danger to the public. If one side’s story frames the argument, those in opposition are at a real disadvantage and many times never recover. We have done a poor job as a community over the years presenting the importance of the patent system to the American public and our political leaders. That’s now come back to bite us.

Judge Michel says Congress stuck in a time warp on patent reform

The problem facing the country as embodied in Congressional proposals to change the patent system is that it’s stuck in a time warp. Congress acts as if the landscape today was exactly the way it looked in 2010 or 2011, but in fact it has totally turned upside down in the last two years. We used to have, for the most part in this country, what I’ll call an honor system where companies that were using technologies patented by others willingly took licenses without being forced by court orders to do so. The honor system now is largely gone.

Why customer stays are terrible for the patent system

Another discrepancy is between the stated legislative goals and the actual proposed language. This is perhaps demonstrated in starkest relief in the “customer stay” provision found in both the Innovation Act bill in the House of Representatives and in the PATENT Act bill in the Senate. It ostensibly would exist to protect downstream customers of a patent infringer, such as a small coffee shop offering Wi-Fi service using a device that unbeknownst to the coffee shop infringes a patent. But while the Senate Judiciary Committee’s summary of the PATENT Act says that the “customer stay is available only to those at the end of the supply chain,” like the coffee shop, the language found in the bill is actually far broader in scope.

Senate Judiciary divided on PATENT Act even if it is a step in the right direction

Given the collective bias of the witness panel, it is hardly surprising that on the issue of the PATENT Act there was a clear, positive consensus in the witness panel. But there is no such consensus within the industry and those voices were brought to the table by Sens. Dick Durbin (D-IL) and Chris Coons (D-DE), two of the sponsors of the STRONG Patents Act that has been debated in Senate committee as recently as March. Durbin, who pointed out that “this panel is divided between people who love the bill and people who really love the bill,” read part of a strongly worded letter submitted by the National Venture Capital Association who is worried that the PATENT Act, as worded currently, could hurt investment.