As March’s arrival portends warmer weather, will the spring at long last usher in long-delayed legislative patent reform? Possibly, if two key members of Congress — one in the House and one in the Senate — get their way.
Let’s start with Sen. Orrin Hatch (R-UT), the chairman of the Senate Republican High-Tech Task Force, who introduced an “innovation agenda” last month, including his plans for legislative patent reform.
Labeling reform “a tremendously thorny issue,” Hatch predicted “there’s one area where we can see real progress this year: venue.”
Recall the raucous dispute about venue we explored earlier this year (0) — the US Supreme Court may be poised to severely restrict the location of the court in which a patent case should appropriately be heard after Congress failed to enact a bill introduced last year by Sen. Jeff Flake (R-AZ). As one practitioner believes (1), the case “could have profound impacts on business decisions and the future of patent reform legislation.”
This time around, Hatch identified venue as one of the major problems plaguing the patent system: “Abusive litigants have exploited a hole in the law to direct a disproportionate number of suits to plaintiff-friendly forums, and to one such forum in particular.”
He also noted that “the Supreme Court is currently examining the issue, so we won’t have a full view of the landscape until after the Court rules. But no matter what the Court does, we’re likely going to need follow-on legislation to prevent future forum-shopping and to ensure that litigants have a meaningful connection to the site of the suit.”
Vowing “to take a leading role on this critical issue,” Hatch figures to be a prominent voice on venue reform going forward.
Meanwhile, on the House side, Rep. Darrell Issa (R-CA), the chairman of the Subcommittee on Courts, Intellectual Property and the Internet (2) of the House Judiciary Committee, delivered (3) unusually candid and colorful remarks (4) at the Consumer Electronics Show (CES) in January, during which he declared that “comprehensive,” “hodge-podge,” “potpourri” patent reform had “failed.”
Issa had strongly backed such a comprehensive package in the previous two Congresses in the form of the Innovation Act, a behemoth of a bill that covered a wide range of litigation reforms.
But at CES, Issa lamented that “BIO [the Biotechnology Innovation Organization] and the universities, you know, kicked us to the ground and beat the s**t out of us, and we’re missing teeth in Washington because they wanted everything.”
As we saw in 2015 (5), an alliance of biotech companies, universities, and venture capital funds thwarted the Innovation Act and sent would-be reformers scrambling.
Evidently still stinging from the beat down, Issa mused that “universities are the largest trolls,” and “the University of California is among the largest of the largest.” He didn’t define the term troll, nor did he differentiate between legitimate licensing and enforcement activity and abuse of the patent system.
Nevertheless, Issa obliquely indicated he favored venue reform and expressed his hope that the Supreme Court would “decide it in a way that I think would be appropriate.”
He also argued for heightened pleading standards in patent litigation and nodded toward the life sciences industry, noting that “we are working on some pharma fixes because pharma has some unusual requests that are not unreasonable for us to try to consider.”
In the end, Issa promised “to offer pieces of legislation, and making it very clear that they are modular — they can move independently, and that we will move them independently if we can.” But he closed by using the “c” word once more: “We’ll work with the Senate on what ultimately becomes likely a comprehensive bringing together of multiple bills.”
One way or the other, Hatch and Issa will push reform forward. Whether they succeed remains to be seen.