Last month, the 111th Congress concluded its work and ended its existence in a lame duck session and with it S. 515, the so-called Manager’s Amendment on patent reform. Last week, the 112th Congress commenced with a slightly new dynamic in congressional leadershisp.
On the Senate side, Patrick Leahy (D-VT) remains the chair of the Judiciary Committee, while 3 Democratic members were not re-elected: Arlen Spector (D-PA) lost in the Democratic Primary, Russ Feingold (D-WI) was defeated for re-election, and Ted Kaufman (D-DE) did not run for Vice President Joe Biden’s seat that he was holding until the special election in Delaware. Sen. Leahy has been a leading advocate of patent reform, viewing it as a legacy for him. He was a leading proponent of S. 515. Presumably, he will push a substantially similar bill through the Committee this year and then begin pleading for a full Senate vote.
More dramatic changes took place in the House with Republicans gaining control. Lamar Smith (R-TX) will chair the House Judiciary Committee with Darrell Issa (R-CA), another member of the Committee, also chairing the Government Oversight Committee. Rep. Smith has also been a strong advocate of patent reform. His vision, however, may be substantially different from that of the Senate. If both houses pass their own versions of patent reform, which seems likely, the bills would need to be reconciled during contentious Conference Committee proceedings.
Law360 (subscription service) reports that former Federal Circuit Chief Judge Paul Michel is continuing his odyssey for patent reform. In speaking at a panel at a DC Bar event, Judge Michel continues to call patent reform “the single most important issue facing the United States today.” While this may seem a bit over the top, he rightfully noted that our economy is tied to innovation in significant ways. To truly lift ourselves out of the current economic slump, patent reform is a necessity.
Judge Michel is now calling for piecemeal reform. The comprehensive bills that have been introduced in the last several congresses have not passed because they covered too many issues, many of which were and are quite contentious. The bills contained a number of vital provisions, however, that are not contentious and could be easily passed. This is the approach that Congress should now take: pass the easy stuff and then argue over the bigger stuff.
Many of the reforms that have been advocated recently are being handled by the courts, such as inequitable conduct, damage reform, declaratory judgments, injunctions, and now the presumption of validity. The most vital reforms, however, need to take place at the PTO. The courts cannot solve the PTO’s funding dilemma, nor can they address the need for improved infrastructure such as a new IT system. Only Congress can solve these problems. Congress should permit the PTO to keep all of the fees that it collects and permanently end fee diversion. Judge Michel envisions a “titanic struggle” between the houses of Congress if each passes a substantially different reform bill.
I think Judge Michel is on to something. His idea is certainly not new, but it is good to have a signficant voice advocating the passage of reforms that are not contentious and are vital to PTO reform. Congress likes to work with large bills that cover many issues because it can often work out compromises within the bills. One side may accept provisions that it doesn’t like in exchange for provisions within the bill that it advocates. This system of reform has not worked for patent reform in the last few congresses. Now, it’s time to try a new approach.
One of the problems with the patent reform bills in the 111th Congress was the lack of hearings that included those on all sides of the issues. The Senate Judiciary Committee did hold some hearings, but they were not comprehensive and did not include all viewpoints. The issue also deserves vigorous debate. That, of course, is not how Congress works.
While it is certainly true that passing nothing is better than passing a bad bill, it is time to pass at least some patent reform to get the PTO on better track.