Patent Litigation Reform on the Horizon?

April 20, 2015 Published Work
Connecticut Law Tribune

For several years, there have been rumblings that Congress will be passing patent litigation reform. The proposed reforms have primarily been directed at addressing complaints about so-called "patent trolls" that misuse "bad patents" by bringing resulting vexatious and costly litigation that leave companies with a choice between paying to defend the lawsuit and paying a settlement to end the litigation.

Prior efforts at reform stalled. Most recently, at the end of 2013, the proposed Innovation Act passed by an overwhelming majority on a 325-91 vote in the U.S. House of Representatives. The Senate version of the bill, the Patent Transparency and Improvements Act, had progressed through the Judiciary Committee and was about to reach the Senate floor. But Sen. Patrick Leahy, D-Vermont, who had been a vocal critic of the current system and a proponent of reforms intended to curb perceived abuses, pulled the bill after Senate Majority Leader Harry Reid, D-Nevada, informed Leahy he would not let it come to the floor for a vote. Again, patent reform efforts stalled in Congress.

With the Republican majority in place after the November 2014 mid-term elections, patent reform is now back on the political agenda. The prospect of a patent litigation reform bill passing into law is closer than ever before. With this political backdrop, there now are several bills being considered by Congress to change the patent laws in several ways. The public comments illustrate strongly held beliefs as to whether strong patent laws help or hurt our economy.

In this regard, there have been significant lobbying efforts made by those in favor of stronger or weaker patent laws and the various proposed litigation reforms. On one side are those who believe that the reforms are necessary to address the patent troll problem. On the other side are those who believe that the proposed reforms are not narrowly tailored to address bad actors and will weaken patent laws for all patent holders (whether operating companies or licensing companies), disadvantage them in court, and make it harder for them to protect against infringers.

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