Leahy Procedural Move Makes Patent Reform Passage Near

By Gene Quinn
April 26, 2010

Senator Patrick Leahy (D-VT), Chair of Judiciary Committee

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) recently came to agreement with Committee Ranking Republican Jeff Sessions (R-AL) on changes to the Patent Reform Act of 2009 (S. 515), winning Senator Sessions’ support for passage and making it extremely likely that patent reform will happen this year, and likely very soon. An individual involved in the ongoing patent reform debate on Capitol Hill tells me that the Leahy-Sessions language would substitute for the Committee-passed language, and then be considered by the Senate as a whole. This is an important procedural step toward passing patent reform, and could mean that patent reform will be passed by the full Senate any day now. Leahy’s procedural move is called a “hot line”, in which Senate Majority Leader Harry Reid (D-NV) will ask all Senate offices for unanimous consent to proceed to the bill, substitute the new language, and consider it passed.

A “hotline” is the term used for a request to Senators to agree to allow a bill or resolution to be considered approved by the Senate without debate. A measure that is “hotlined” is recorded in the Congressional Record as a being agreed to by unanimous consent. Some hotlines can include amendments but limit debate and discussion and do not require individual votes on the amendment or the underlying bill.  If an office has an objection to the bill being hotlined, they are asked to call the leader’s office and state that they would like to object to the bill being passed by unanimous consent. Thus, instead of requiring explicit unanimous consent to pass a bill, the hotline process really only requires a lack of dissent. The process of notifying the leader’s office of such dissent is informally referred to as a “hold.”  In some Senate offices, the request for unanimous consent may never even reach Senators, and the decision to allow a bill to be approved without debate is determined by staff. Staff may also place a hold on a bill without the knowledge of a Senator.  See Holds and Hotlines: How a Single Senator Can Block Consideration of a Bill and the Senate Passes Bills Without Votes.

In a letter dated April 20, 2010, addressed to both Senator Leahy and Senator Sessions, Commerce Secretary Gary Locke explained that President Obama strongly supports patent reform efforts and would like to see the bill brought to the floor of the Senate and passed this year. Locke’s letter states:

As expressed in my letter to you of October 5, 2009, the Obama Administration strongly supports your efforts to achieve such reforms and is committed to working with members of both houses of Congress to bring these efforts to fruition as you seek to bring a bill to the Senate floor. Regardless of any issues that remain under discussion, there is a consensus that a strong patent system, including an appropriately funded and well-functioning United States Patent and Trademark Office (USPTO), fosters innovation that drives economic growth and creates jobs.

After then going briefly through several of the key provisions of S. 515, Secretary Locke concludes:

The Administration is eager to see patent reform enacted this congressional session. To this end, we would be pleased to work with you and members of the House and Senate to arrive at a final bill for passage.

The National Journal reported last week that Senator Leahy is seeking floor time for consideration of S. 515, and hopes that it will be taken up by the full Senate prior to Memorial Day.  The National Journal report mentions a number of other priorities facing the Senate, so the fact that Leahy is now seeking to have patent reform hotlined suggests that he may not have been able to obtain any time for the Senate to take up patent reform this year and the only chance of passing it would be to have it done through a unanimous consent procedure and without any debate.

A bill is hotlined at the discretion of the Majority Leader in consultation with the Minority Leader.  The aforementioned source on Capitol Hill explained to me that the hotline request has already gone out to Democrat Senators, and a similar request is expected sometime this week to be sent from Republican Minority Leader Mitch McConnell (R-KY) to Republican Senators.  So stay tuned.  We could have passage of patent reform in the Senate in very quick order.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 10 Comments comments.

  1. John White April 26, 2010 1:12 pm

    This is, obviously, very exciting. I have to believe in some respect, however, that the devil you know is better than the devil you do not. Current law and procedure is a muddle; but at least it is a muddle we more-or-less understand. I am generally in favor of the reform and it goals, but am uncertain about the ramifications at street level. The day-to-day will be in upheaval for sometime as the necessary rules and training are devised to implement. But, inasmuch as I am in the training business, and have helped the PTO in the past, I will offer to do so again. I look forward to the updates on Reform. Thanks.

  2. staff April 26, 2010 2:47 pm

    The bill prior to the changes was a direct hit on small entities. It amounted to legalizing theft. They were buying legislation. Let’s first take time to carefully study their changes before plowing ahead. I am pessimistic.

    Patent reform is a fraud on America. It is patently un-American.

  3. EG April 26, 2010 4:19 pm

    Gene,

    i know we’re on opposite sides on S.515. But as John White correctly observes, we’re going to have an “upheaval” here which will likely create as much chaos as a SCOTUS decision coming down in our area of the law. I remain unconvinced that S.515 is needed or advisable for fixing what “ails” our patent system. I see it as only putting our innovative small American businesses at a competitive disadvantage relative to larger businesses.

  4. Gene Quinn April 26, 2010 4:22 pm

    EG-

    I’m not sure there will be competitive disadvantage, but I am concerned that by doing this through a unanimous consent procedure the troubles with the grace period will not be addressed. I haven’t seen the compromise language reached between Leahy and Sessions, but the last draft of S. 515 did not have a real grace period. The grace period related only to the activities of the inventor, not to third party activities. If that becomes law inventors everywhere would be better off believing there is no grace period and act accordingly.

    -Gene

  5. breadcrumbs April 26, 2010 4:41 pm

    Gene,

    Do you think that the compromise language will also include the Kappos “escape hatch” that certain provisions will not be enacted until the ROW subscribes to the US “Golden Standard” (related to provisionals)?

  6. step back April 26, 2010 8:18 pm

    Every time the good ole’ boys on Capital Hill get together for some no debate “bipartisan” action, you know they’re up to no good.

    Last time they called it TARP or CARP, or something like that.

    This time they can call it iPADX 2010:

    intellectual Property Asset Destruction and Extermination (act of) 2010

  7. Gene Quinn April 26, 2010 8:39 pm

    Step-

    When you make sense you make a lot of it! Even if I agree with something I see no reason for back room deals. Sunlight is the best disinfectant and us sorely needed in DC.

    I like what Mike Huckabee called the bailout… Congressional Relief Action Program… or CRAP for short.

    It is both alarming and inspiring that patents are important enough to get the “special treatment” from Congress. Who would have dreamed patents would be viewed as important enough to ram through without the amendments being known, read or debated. Even important enough for the law to go into effect without a vote.

    Somehow I don’t think our founding fathers envisioned this.

    -Gene

  8. step back April 26, 2010 9:43 pm

    Gene–

    Our Founding Fathers envisioned this alright.

    It’s the behavior of a monarch and of an absolute dictator.
    There is no debate or sunshine when a monarch is running the show.

    No wonder the Tea Baggers are mad as heck and not sipping their Latte weakly anymore.

  9. EG April 27, 2010 8:37 am

    SB,

    Having been born and grown up in the DC area (yes, I’m a “die-hard” fan of that politically inccorect football team), I know the “Insane Asylum for the Helpless” (that’s what Mark Twain called Congress) is DEFINITELY UP TO NO GOOD! As we used to say, “where the national news is the local news, and the local news is the national news.” We locals always breathed a sigh of relief when summer arrived and Congress went home.

  10. Dale B. Halling April 27, 2010 10:15 am

    This bill is still damaging to the small inventor, does not solve the patent office backlog, does not solve the insanity of KSR and eBay and now the Myriad cases. Let’s hope sanity prevails and this bill dies.