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Patent Litigation Reform

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In 2013, Congress began considering legislation to address abusive patent litigation. Numerous bills were introduced during 2013-2014 as the effectiveness of proposed changes was debated. In the current Congress, the House Judiciary Committee has approved H.R. 9, “The Innovation Act,” introduced by Committee Chairman Bob Goodlatte (R-Va.) and the bill awaits a vote by the full House of Representatives. The Senate Judiciary Committee has approved S. 1137, the “Protecting American Talent and Entrepreneuership Act of 2015” (“PATENT Act”), introduced by Committee Chairman Chuck Grassley (R-Iowa) and the bill awaits action by the full Senate.  Both bills are expected to be brought to a vote in October or November of this year.

Both bills would make a number of changes to procedures in federal courts, including creating a heightened pleading standard for patent cases, a procedure allowing a manufacturer of an allegedly infringing product to intervene and stay cases against downstream customers and retailers, and and a required stay of discovery until resolution of motions to transfer venue and other preliminary motions. The bills also change the standard for awarding attorney fees to a prevailing party in patent infringement suits based on the position and conduct of of the nonprevailing party. The bills also include some amendments to the Leahy-Smith America Invents Act, including changing the estoppel provision for post grant review proceedings and codifying the doctrine of double patenting for first-inventor-to-file patents.

IPO has adopted resolutions on most of the bills’ provisions and will continue to support changes in the law that will lower improve the quality of issued patents, reduce patent litigation costs and risks, and simplify application processing.

Bills:

Patent Litigation Reform Bills Introduced in the 113th Congress

H.R. 9Innovation Act A bill to amend title 35, United States Code, and the Leahy-Smith America Invents Act to make improvements and technical corrections, and for other purposes. (Rep. Goodlatte, R-VA; introduced 2/5/2015; referred to the Committee on the Judiciary).

H.R. 1896The Demand Letter Transparency Act A bill to amend chapter 26 of title 35, United States Code, to require the disclosure of information related to patent ownership, and for other purposes. (Rep. Polis, D-CO; introduced 4/20/15; referred to the Committee on the Judiciary).

H.R. 2045Targeting Rogue and Opaque Letters Act A bill to provide that certain bad faith communications in connection with the assertion of a United States patent are unfair or deceptive acts or practices, and for other purposes. (Rep. Burgess, R-TX; introduced 4/28/15; referred to the Committee on Energy and Commerce; reported out of committee 4/29/15).

S. 632 — STRONG Patents Act A bill to strengthen the position of the United States as the world’s leading innovator by amending title 35, United States Code, to protect the property rights of the inventors that grow the country’s economy. (Rep. Coons, D-DE; introduced 3/3/2015; referred to the Committee on the Judiciary).

S. 1137Protecting American Talent and Entrepreneurship Act A bill to amend title 35, United States Code, and the Leahy-Smith America Invents Act to make improvements and technical corrections, and for other purposes. (Sen. Grassley, R-IA; introduced 4/29/15; referred to the Committee on the Judiciary).

Documents:

Patent Litigation Bills and IPO Positions, 10/01/2015
Herb Wamsley’s Statement to House Judiciary Committee re: How Recent Supreme Court Cases Affected Need for Patent Litigation Reform, 02/12/2015
Statement of Herbert Wamsley Before House Subcommitee on Courts, the Internet, and Intellectual Property, 02/12/2015
IPO Comparison Chart of Patent Litigation Bills in the 113th Congress, 02/19/2014
IPO Quick Overview of 113th Congress Patent Litigation Bills, 01/23/2014
HR 3309 as Passed by House and IPO Positions, 12/09/2013
Comparison of H.R. 3309, Manager's Amendment, and IPO Positions, 11/19/2013
Obama Administration Report on Abusive Patent Litigation, 06/04/2013
Obama Administration Statement on Abusive Patent Litigation, 06/04/2013