The reports of the death of patent reform have been greatly exaggerated. A bill labeled ‘patent reform’ has been proposed for each of the last several years, but has never been able to garner the votes necessary to pass both the House and Senate. The reason is that the various patent constituencies have very different goals and interests.
An important compromise has been reached between Senate Judiciary Committee Chairman Patrick Leahy and Committee Ranking Republican Jeff Sessions, gaining Sen. Session’s support for the Patent Reform Act of 2009 (S.515). The Obama Administration is in favor of patent reform and exhorted Leahy and Sessions to action as recently as April 20, 2010. To move the bill, Sen. Leahy is using a special Senate procedure known as a “hotline,” which does not involve debate and does not require a vote. Each Senator is given the opportunity to object, known as a “hold.” If any Senator places a “hold,” the bill does not proceed. If no Senator objects, the bill is passed by unanimous consent.
Although we are not privy to the compromise reached by Senators Leahy and Sessions, we can anticipate that the bill will include many of the inventor-unfriendly elements present in the last several patent reform bills, including a change from ‘first to invent’ to ‘first to file’ and limits on damages for patent infringement. A recent ‘Manager’s Amendment’ amends the bill to eliminate the effect of recent false marking court decisions. Stay tuned.
–Robert Yarbrough, Esq.