Republicans Push Judiciary Leadership On Patent Reform

Congress Daily AM

As the Commerce Department works on the near-term release of a letter providing the Obama administration’s views on a Senate bill aimed at overhauling the U.S. patent system, key Republicans are pressing Senate Judiciary Chairman Patrick Leahy and ranking member Jeff Sessions to resist proposals they believe could weaken the measure.

Sens. Orrin Hatch, R-Utah; Mike Crapo, R-Idaho; James Risch, R-Idaho; Michael Enzi, R-Wyo.; and Robert Bennett, R-Utah, asked them to build on “careful compromises” reached when the panel approved the bill in April, 15-4. At the time, Leahy lost the support of Hatch, a key ally who was upset the amended version failed to address the issue of “inequitable conduct” claims at the Patent and Trademark Office.

Hatch, who chairs the Senate Republican High-Tech Task Force, said Wednesday that he voted against the bill because he “wanted to make sure patent reform was done right.” Nonetheless, he said there were good provisions in the bill and he wants to make sure Leahy and Sessions are “vigilant in preserving what has been achieved.”

Stakeholders are divided over the bill’s approach to administratively challenging a patent’s validity after it is granted. The latest version would adopt House-passed text from 2007 that lengthens the timeline for challenging a granted patent and strips out a “public use or sale” provision that Leahy added as a basis for challenging a patent.

Critics such as the Innovation Alliance and the Manufacturing Alliance on Patent Policy have said the section could lead to misuse of the post-grant review process. The Coalition for Patent Fairness, whose members are major tech and media firms, supports an opposition procedure that lets third parties challenge issued patents.

Another sticking point is the bill’s approach to willful infringement in the context of a patent infringement lawsuit. The Judiciary measure purportedly codified a recent decision by the U.S. Court of Appeals for the Federal Circuit that requires defendants to use a higher “clear and convincing evidence” standard. “That would impose so many limits and restrictions that no one would be found to willfully infringe again,” one Senate aide said.

Coalition for Patent Fairness member companies have been in explicit talks with key House and Senate players as well as administration officials about “bottom line” conditions on post-grant and willfulness provisions. A spokesman for the group would not be more specific about its position.

Timing for floor consideration hinges on the outcome of the negotiations, a spokeswoman for Majority Leader Reid said.

Meanwhile, the PTO faces major internal hurdles including a projected $200 million funding shortfall for 2010 and a chronic backlog of patent applications, PTO Director David Kappos told a U.S. Chamber of Commerce summit Wednesday. His goal is to reduce pendency to 10 months over a three-year period. House Foreign Affairs Chairman Howard Berman, a major player on patent legislation, told the same crowd that it is “just crazy” not to allow the PTO to set its fees.

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