Shortly after 2pm Eastern Time the United States House of Representatives voted on the Managers Amendment to the America Invents Act, H.R. 1249. The Managers Amendment passed by a vote of 283 – 140. The House then proceeded to address several amendments to H.R. 1249. It seems that there will be a vote on H.R. 1249 later today, and the way the amendments are going it seems as if the House will pass patent reform.
One of the amendments discussed was the Conyers-Rohrabacher amendment that would have the U.S. convert to a first to file system if and only if a Presidential finding determined that the rest of the world had adopted a grace period. After 10 minutes of debate a voice vote was held and the amendment did not pass. Congressman Conyers (D-MI) requested a vote on the record, so further discussion was tabled pending a full vote on the record, which will presumably occur later this afternoon.
Another amendment discussed was the Baldwin-Sensenbrenner amendment that would strip the prior user rights provisions from H.R. 1249. During the 10 minutes of debate Congressman Lamar Smith (R-TX), who is Chair of the House Judiciary Committee, explained that he strongly supports prior user rights which he said was a central aspect of the bill. Smith also explained that it was his belief that prior user rights was strongly pro-manufacturing and would lead to job creation. Congressman Sensenbrenner (R-WI) argued that prior user rights was rejected by the House 4 years ago and is fundamentally contrary to the purpose of a patent system, which seeks disclosure. He explained that voting for prior user rights was to embrace secrecy and voting for his amendment to strip prior user rights would be a vote to embrace disclosure, the very purpose of a patent system. Again a voice vote was held and the amendment did not pass. Congresswoman Baldwin (D-WI) requested a vote on the record, so further discussions were tabled pending a full vote on the record.
The handwriting seems to be on the wall. The House is poised to pass H.R. 1249, together with prior user rights and without giving the United States Patent and Trademark Office access to the fees it collects without the blessing and approval of appropriators.
Whatever transpires today in the House the fight for patent reform will not be over. The House bill will not be identical to the Senate bill, so it cannot go to the President’s desk for signature. I have repeatedly been told by knowledgeable sources that I trust that there will be no Conference on this bill. Given the changes the bill will have to go back to the Senate and the Senate will either adopt the House version of patent reform or not.
I cannot believe the House bill, H.R. 1249, would have been able to successfully leave the Senate. H.R. 1249 is different in several ways, particularly with respect to USPTO funding and with the addition of prior user rights. While it appears that by the end of the day today we will be closer yet to patent reform being a reality, the Senate will have the final say. I expect the pressure from interest groups to be extraordinary. I have a hard to believing the Senate will capitulate to the House’s demands, but there is always a possibility that Senators will be thoroughly exhausted, no longer really care about what they could perceive as minor differences and simply vote to accept a bill that will have no impact on them collecting a single vote in any election.