Posts Tagged: "House of Representatives"

Issa’s amendment changes the language so that a party bringing a patent infringement suit where the defendant has its principle place of business, where the defendant has a physical presence, or where the patent owner has a meaningful physical presence due to research and development or manufacturing. At first glance these venue provisions seem reasonable because they would curtail the extreme forum shopping that does go on in patent cases, as witnessed in the Eastern District of Texas. On closer consideration, however, this provision could create problems for those patent owners who are not bad actors that seek to abuse the system or take advantage by only filing in favorable, remote forums.

One of the issues that took up a significant amount of time during the first half of the hearing was the proposed extension of the transitional program covered business method review. The amendment submitted by Congressman Issa (R-CA) sought to extend CBM by pushing back the sunset period until December 31, 2026. The Issa amendment to extend CBM was defeated by a vote of 18-13.

The House Judiciary Committee will hold a hearing on Thursday morning, June 11, 2015, at 10am ET in order to markup the Innovation Act. The Manager’s Amendment is currently available on the hearing webpage. Additional proposed amendments by Judiciary Committee members are excepted to come in and be posted sometime later today. While a markup of this legislation has been rumored numerous times only to be postponed, it seems that this hearing will go forward. It is widely expected that the Innovation Act will easily clear the House Judiciary Committee. The resulting bill with whatever amendments may be approved may move quickly to the full House of Representatives for a vote.

The need for Rep. Issa’s company to enforce its rights reminds us that inventors and small businesses often have to protect their patents through litigation. But the patent legislation supported by Rep. Issa will make it much harder for all patent owners to protect their rights, imposing extensive financial and procedural burdens that go far beyond what is necessary (or helpful) to curb abusive litigation practices. Whereas true patent reform should be a scalpel, this patent legislation is a sledgehammer. All legitimate inventors and startup companies, like Reps. Issa and Massie, are treated as acceptable collateral damage in the effort to eliminate the handful of bad actors who file nuisance lawsuits.

Another discrepancy is between the stated legislative goals and the actual proposed language. This is perhaps demonstrated in starkest relief in the “customer stay” provision found in both the Innovation Act bill in the House of Representatives and in the PATENT Act bill in the Senate. It ostensibly would exist to protect downstream customers of a patent infringer, such as a small coffee shop offering Wi-Fi service using a device that unbeknownst to the coffee shop infringes a patent. But while the Senate Judiciary Committee’s summary of the PATENT Act says that the “customer stay is available only to those at the end of the supply chain,” like the coffee shop, the language found in the bill is actually far broader in scope.

Yesterday the House Committee on Energy and Commerce voted to approve the Targeting Rogue and Opaque Letters (TROL) Act by a vote of 30-22. Meanwhile, the Protecting American Talent and Entrepreneurship Act (the PATENT Act) was introduced into the Senate. It is now also believed that Congressman Goodlatte may have a hearing or markup with respect to the Innovation Act at some point during the week of May 11th. However, there whispers that the Innovation Act may not be able to make it out of the House Judiciary Committee.

On Monday, May 11, 2015, IPWatchdog will a co-sponsor a roundtable discussion on patent reform. This event will take place at the law offices of McDermott Will & Emery, which is located directly across the street from the U.S. Capitol. Bernie Knight, a partner with McDermott and a former General Counsel to the United States Patent and Trademark Office, will co-moderate the event along with me. We hope you can join us for this discussion.

The TROL Act was introduced during the 113th Congress and as Subcommittee Chairman Congressman Michael Burgess (R-TX) explained it passed the subcommittee with bipartisan support. Still, Burgess explained during his brief opening statement that he believed “the text could be amended narrowly to achieve better protections for recipients of demand letters.” Despite the previous bipartisan support, Ranking Member Congressman Frank Pallone (D-NJ) said that he cannot support the TROL Act as it is written because “it includes problematic language that does not move us forward.”

This year the Innovation Act has been reintroduced, and after some thought that the bill would sail through the House of Representatives without even an additional hearing. The Senate has also held several hearings on patent reform, with a competing view of what patent reform should look like being submitted by Senator Chris Coons in the form of the STRONG Patents Act. The House is also considering more tailored legislation narrowly focusing on demand letters (i.e., the TROL Act), and just recently Senators Tammy Baldwin (D-WI) and David Vitter (R-LA), along with United States Representatives Jim Sensenbrenner (R-WI) and John Conyers, Jr. (D-MI) submitted the Grace Period Restoration Act, which would reinstated the full 12 month grace period that was taken away from inventors as part of the America Invents Act (AIA).

There were statements recognizing the need to keep open legitimate avenues to for innovators to protect themselves against infringement, and a strong desire to make sure that legislation focus on bad actions and actors. Not surprisingly, the Committee seems to largely think that the Innovation Act does strike the proper balance, although there was also recognition that changes could be made to make the bill better. USPTO Director Michelle Lee was wholeheartedly in support of fee shifting, justifying the position by saying that fault based fee-shifting will raise the costs for those who engage in abusive actions.

According to Congressman Collins, who I spoke with via telephone on Friday, March 6, 2015, there was a great deal of treatment of the SEA at the subcommittee level during the 113th Congress, but now during the 114th Congress consideration will move to the full Committee level, which suggests a seriousness about getting something done. ”Music licensing will be an area where something bubbles up this Congress,” Collins explained. ”I’m hoping the industry will come together.”

Notice letters play an important role in the patent system. Indeed, as the Supreme Court has explained, ”[p]atents would be of little value if infringers of them could not be notified of the consequences of infringement.” Virtue v. Creamery Package Mfg., Co., 227 U.S. 8, 37-38 (1913). Patent law encourages patent holders to take reasonable steps to notify others of existing or pending patent rights and their possible infringement. In some instances, federal patent law requires patent holders to send notice letters to accused infringers to preserve their patent enforcement rights and ability to collect damages. Notice letters and licensing communications can also serve the interests of accused infringers. Once a patent holder has made its rights known, the accused infringer can determine whether to cease the allegedly infringing activities, negotiate a license, or decide to continue its activities based on an assessment of non-infringement or invalidity.

Congressman Jerrold Nadler has been selected by Democrats to be the Ranking Member of the House IP Subcommittee. It appears that Issa may be getting squeezed out, which could mean that the House IP Subcommittee will have a lot less work to do than one might expect in a Congress that will be seeking to push major reforms to both the Copyright Act, the Patent Act and to implement federal trade secret legislation. Nevertheless, it is still worth knowing who the key players could be. With that in mind, and without further ado, here are the Democrats on the House IP Subcommittee.

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.

With respect to intellectual property it is the House Judiciary Committee that will set the agenda for any potential legislative reform over the next two years, with the Subcommittee on Courts, Intellectual Property, and the Internet leading the way. The often controversial Darrell Issa has lost his leadership position on the House Oversight Committee, but he has gained the gavel of this IP subcommittee. Few anticipate that he will easily be relegated to the back bench, so look for an active and bumpy ride over the next two years.