After two days of debate that included the issues of the constitutionality of the first-to-file regime and PTO funding provisions, the America Invents Act overwhelmingly passed the House of Representatives yesterday, 304-117.
Earlier in the day, the House had passed Judiciary Committee Chairman Lamar Smith’s (R-TX) Manager’s Amendment, 283-140. The Manager’s Amendment stripped the original bill of the PTO’s fee-setting authority. Although Chairman Smith argued that the newly worded fee provision requires PTO collections be placed in a specific fund that can only be used by the PTO, the fact is that the provision is very similar to the status quo. The fees the PTO collects must still be appropriated by Congress. House members promised not to steal any more funds from the PTO, but we all know how much congressional promises are worth.
Patent Docs has a recap of the voting on various proposed amendments to the bill.
Now, the House bill must be reconciled with the Senate bill before anything is sent to Pres. Obama for signature. The leading proponent in the Senate for ending fee diversion, Sen. Tom Coburn (R-OK), issued a press release urging the House to reject the bill that lacks the provisions to end fee diversion. He argued that without this safeguard, there is no reason to believe that the Appropriations Committee will not continue to steal funds from the PTO.
Meanwhile, the Aministration, through Director Kappos, issued a statement praising passage of the bill and encouraging expeditious final passage. Director Kappos seems more confident in a promise from the Appropriations Committee than seems warranted given that that committee is responsible for the current mess that siphoned off close to $1 billion from the PTO over the last 20 years.
Will the Senate accept the removal of the fee diversion prohibition language? What about the House’s broad prior use rights? Let’s hope not. The bill that passed the House is a far cry worse than the one that passed the Senate.