Making good on a promise made shortly after the November 2014 elections, multiple sources have confirmed that House Judiciary Committee Chairman, Congressman Bob Goodlatte (R-VA), will soon introduce the latest round of patent reform legislation in the United States House of Representatives. The bill, which will be nearly identical to the Innovation Act, which Goodlatte introduced during the 113th Congress, is expected to be introduced on Thursday, February 5, 2015. Goodlatte will bypass the Subcommittee on Courts, Intellectual Property, and the Internet, and the bill will proceed directly to the Committee level. A mark-up of the bill is expected as soon as several weeks after introduction. The Innovation Act passed the House during the 113th Congress by a vote of 325-91, but eventually died in the Senate.
News of an imminent introduction of patent legislation is not shocking, but what is at least somewhat surprising is that the legislation will bypass the Subcommittee on IP. Congressman Darrell Issa (R-CA) lost his leadership position on the House Oversight Committee due to term limits the Republicans apply to leadership positions, but Issa gained the gavel on the IP Subcommittee. A prolific inventor with dozens of patents himself, Issa pledged to work to build a bipartisan bill to address abusive patent litigation practices and to provide oversight of the USPTO to help prepare the agency for the challenges ahead.
According to Politico, when Issa was tapped to be the new Chair of the IP Subcommittee Goodlatte made it abundantly clear that Issa’s Subcommittee would not have jurisdiction over anticipated copyright legislative reform. Goodlatte informed Issa that he would keep copyright legislative reform at the full Committee level. The understanding between Goodlatte and Issa was believed to be that Issa would get some latitude with respect to patent reform, an area where he is regarded as quite knowledgeable given his experience with the patent system as an inventor and businessman prior to being elected to Congress.
Things have a way of changing quickly in Washington, DC, as evidenced of the spectacular and extraordinarily quick retreat from the President’s plan to tax college savings plans. Having said that, in recent years it has been the Senate that has been a far more favorable Chamber for those opposing patent reform. Still, if these rumors are true and the House IP Subcommittee won’t have jurisdiction over either patent or copyright matters there will be many quizzical inquiries.
It seems likely that Goodlatte did give Issa some reason to believe he would have at least some latitude to put his stamp on patent reform legislation. While Issa has become a controversial figure in Washington, DC, in recent years, it seems unlikely that he would have touted his plans to become more involved with patent reform if he didn’t have some reason to believe he was actually going to be involved with the primary patent reform legislation that will be considered by the 114th Congress. So why then would Goodlatte giveth and then taketh away?
Perhaps the answer to the question is no more complicated than recognizing that Issa is a controversial figure. As important and mainstream as patent issues have become over the last 5 years, patents rarely if ever drive voters to the polls, which means there is little political advantage to be gained. Bipartisanship, something that Issa has not excelled at in recent years, is not only possible, but required. Sure, donors will have interests in the issue, and whenever money is involved politics can’t be far away, but there is big money on both sides of the issue. Thus, patent reform is something of a zero-sum game in Congress.
But perhaps the answer as to why patent reform will skip past Issa has nothing to do with Issa at all and everything to do with patent eligibility. Very quietly behind the scenes there have been two distinct camps working, or perhaps better to call it “taking the temperature of Congress,” relative to patent eligibility. Innovators that need strong patent rights would love to see legislative reform to 35 U.S.C. 101, which would make software and gene patents once and for all explicitly patent eligible. Such a reform would require as few as 4 additional words to the statute. At the same time, forces on the other side of the issue would like the exact opposite; an express prohibition on patenting software and genes. Innovators have been hesitant to make a move, although I am told they are ready if they see an opening. Having said that, the pro-patent forces are particularly hesitant to make a move that they cannot win because inevitably that would be spun in court has Congress having the opportunity to explicitly doing one thing or the other and not acting. Could Goodlatte’s move be designed to prevent patent eligibility deliberations from derailing patent reform?
Whatever the case may be, those who would prefer Congress to stand down and sit out patent reform this year have little time if they are going to mount a successful challenge in the House of Representatives.
One encouraging sign for those who oppose patent reform is the emergence of one of the broadest coalitions in recent memory. The coalition recently sent a letter to Goodlate, Congressman Jon Conyers (D-MI), Senator Chuck Grassley (R-IA) and Senator Patrick Leahy (D-VT), a broad based coalition of 250 entities implored Congress to slow down and consider fully the changed landscape before enacting additional patent reform. The letter begins:
The undersigned represent a broad coalition whose members represent the majority of the nation’s patent holders and inventors. We are a diverse array of American innovators, ranging from universities and non-profit foundations, to start-ups and small businesses, to manufacturing, technology, and life sciences companies. Together we represent thousands of organizations that employ millions of workers in the United States. We all believe that the future of the U.S. economy, including domestic job growth and our competitive advantage in the global economy, depends on a strong patent system that incentivizes innovators to invent and protects their inventions from unfair copying by others.
This coalition is heavily but not exclusively made up of pharmaceutical and biotechnology companies, but does have representation from across the innovation spectrum, including large companies, universities, independent inventor organizations and even the USPTO employees union. Representation on the large corporate side includes Amgen, AstraZeneca Pharmaceuticals, DuPont, Genzyme, Merck & Co., Monsanto, and Qualcomm. On the university and industry organization side coalition members include the Association of American Universities, Association of Public Land Grant Universities, Biotechnology Industry Organization, IEEE-USA, Innovation Alliance, National Venture Capital Association, and PhRMA. Independent inventor and small business representation includes Edison Nation, Minnesota Inventors Congress, San Diego Inventors Forum, National Small Business Association, and Small Business Technology Council.
After detailing the various changes to patent laws and the patent system that have occurred over the past several years, changes ranging from Supreme Court decisions to the America Invents Act and the Federal Trade Commission aggressive pursuit of those sending fraudulent and misleading demand letters, the coalition concludes:
Taken together, these judicial and administrative developments, and the plunge in the patent litigation rate, have fundamentally changed the landscape under which patent legislation should be considered. As Congress considers potential changes to the patent system that threaten the constitutionally-guaranteed property rights of innovators, it must assess the full effects of the AIA, changes to the Federal Rules of Civil Procedure, the case law developments, and these administrative developments.
Time will tell what happens. Stay tuned!