All has been rather quiet on the patent reform front in recent weeks. There has been a lot of speculation that patent reform is dead for now. We all know from experience, however, that Congress tends to do much of its work in back room deals behind closed doors rather than publicly. Thus, the seemingly stalled reform bills could be revived at any time.
A few weeks ago, several House members sent a letter to the House leadership expressing opposition to the pending bills. BNA (subscription service) is now reporting that Reps. Michael Michaud (D-ME) and Donald Manzullo (R-IL) are continuing to bring publicity to the provisions of the bill that they oppose. They conducted a briefing last week with several industry groups.
Although it seems more prudent to not draw further attention to bills that are seemingly dead, Stanley G. Fendley of Corning Inc. said that rumors of an agreement between Judiciary Committee leaders Sens. Patrick Leahy (D-VT) and Jeff Sessions (R-AL) prompted concern that the Senate version might be revived.
During the House briefing, Corning and the United Steelworkers expressed their concerns about the pending legislation, specifically the damages and post-grant review provisions. Corning expressed support for the Senate compromise on damages, but noted that it is unclear whether the House would adopt the compromise in its version.
The removal of estoppel provisions for arguments that could have been raised in inter partes reexamination or post-grant opposition proceedings and the ability to tie up an issued patent in such proceedings for years are two additional provisions that cause the groups to be concerned.
United Steelworks added several additional concerns related to requiring 18 month publication of all applications regardless of whether they will be filed internationally and the lack of sufficient funding for the PTO. Many of the provisions in the legislation require additional work and the expediture of additional resources on the part of the PTO, yet the bills fail to give the PTO any additional resources. Simply giving the PTO more work to do without giving it the resources to do it will fail.
Corning did express support for the provisions that would limit forum shopping and would support a limited 12-month window for post-grant opposition that would not permit serial challenges to a patent.
If the rumors are correct and an agreement has been reached to revive the bills, this is par for the course for Congress. Such a piece of legislation that will have a large economic impact on our country deserves to have open hearings with all affected parties. It’s simply too important to be legislated by back room deals.
Congress refused to have open hearings on health care, why would they do so on patent reform?