Patent News

May. 13, 2014

Intellectual Asset Management: Patent reform in the US should be a question of what not when, by Richard Lloyd

This post originally appeared in Intellectual Asset Management on May 13, 2014.

If you read the letter that the Main Street Patent Coalition sent yesterday to the two senior senators on the Senate Judiciary Committee, it’s clear that they want patent reform to happen sooner rather than later. Despite their interest, the latest delay to the proposed bill (mark-up by the Judiciary Committee was put off again last Thursday) would appear to suggest that the window to get something done this year is closing – just as we suggested might be the case in February. But to what extent does that matter?

The letter, which the Main Street Coalition sent to Senators Leahy and Grassley, the chairman and ranking member on the Committee respectively, makes its point forcefully: “On behalf of the millions of businesses that we represent, we call on the US Senate Judiciary Committee to approve meaningful patent reform now,” it states. It goes on to add: “Delay in enacting reforms simply empowers patent trolls and permits even greater harm to Main Street businesses and our economy. The Judiciary Committee must take action now to respond to these clear abuses.”

The Main Street Patent Coalition, which includes the National Retail Federation and National Restaurant Association, was formed after a growing number of small businesses found themselves the target of they claim are frivolous demand letters over alleged patent infringement. Its voice is a new and powerful factor in the most recent attempts to reform the US patent litigation system and has created a very different dynamic to the current reform debate compared with the one that surrounded the America Invents Act.

Despite the Coalition’s input, however, it’s clear that for all Leahy’s attempts to bring a bill before the Judiciary Committee serious obstacles remain to reform. The Hill last week quoted Senator Grassley as saying that he had been told that Leahy’s proposed legislation was “running into opposition from groups that really want a strong bill”.

That would suggest that time is running out for a law to be passed this year. However, as with the AIA – which came together in close to its final form in the summer of 2010 and was then reintroduced and finally passed by Congress in 2011 – the focus over the next couple of months should be on crafting a bill that is palatable to as broad a spectrum of interests as possible, not one that can be passed this year. Getting this legislation right, and keeping further reform off the agenda for the foreseeable future, should be the main priority for all involved.