House Judiciary Seen Likely to Start Earlier on Patents Than Copyright Next Congress
The House Judiciary Committee is poised to continue its years-long work on copyright and patent litigation revamp legislation next Congress, and patent bills appear likely to get earlier action, industry lobbyists said in interviews. That perception is bolstered by the lack of clear House Judiciary priorities for possible copyright legislation before the November election and the likelihood the committee can easily reintroduce patent bills that stalled in the 113th and 114th Congresses. House Judiciary still anticipates “releasing some outlines for potential [copyright] reforms before the end of this Congress,” an aide said.
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Chairman Bob Goodlatte, R-Va., has yet to release a long-awaited list of committee priorities for copyright legislation and it's unclear if the committee will provide anything substantial before the 115th Congress convenes, lobbyists said. Goodlatte said in April his committee was planning to identify within a few weeks the copyright issues on which consensus legislation was possible and would circulate outlines of potential legislation (see 1604260062). That priorities document, which lobbyists variously described as an “outline,” a “white paper” and a “proposal,” appears to have been “put on the back burner” for now, a tech sector lobbyist said: “You’ll need to look at the beginning of the next Congress before we see anything substantial” on copyright.
More substantive copyright issues “don’t seem to have any momentum, and the priorities that Chairman Goodlatte intended to release no longer seem forthcoming,” an IP lobbyist said: “There’s just not a whole lot of momentum right now” within the committee for moving ahead on actual copyright legislation. The one issue that seems likeliest to move is Copyright Office modernization, “but even there, the energy seems to have shifted” to the Senate Judiciary Committee, the IP lobbyist said. Senate Judiciary Chairman Chuck Grassley, R-Iowa, and committee ranking member Patrick Leahy, D-Vt., previously indicated a circulated CO modernization proposal could lead to a wider increase in their attention on copyright legislation next Congress (see 1607150022).
“I’d be shocked” if House Judiciary released its copyright legislation priorities before the election given that staff indicated in recent weeks that they weren't clear on the scope of issues to include, said Digital Media Association General Counsel Greg Barnes: “I don’t think copyright has lost any significance or importance” for the committee. “I just think they haven’t been able to make those decisions” yet. Once "we know the balance of power in Congress and who wins the White House, I think you’ll see just as much energy and attention in January as you did earlier this year,” Barnes said.
Congress’ copyright legislative work always has been a “longer-term” discussion, and to get a better sense of its potential momentum next Congress, “we’d need to see what Senate Judiciary is interested in doing, if anything,” said Sandra Aistars, George Mason University Center for the Protection of Intellectual Property director-copyright research and policy. It would be important to hear what Grassley and Leahy say “more broadly” on copyright legislation beyond the CO modernization proposal they circulated, Aistars said.
House Judiciary would be able to quickly pivot after the start of the next Congress to consider revised versions of stalled patent revamp bills like the Innovation Act (HR-9), making it “more ripe for action than copyright” in the new year, an IP lobbyist said. “House Judiciary has chewed over patent bills for the last few years, while with copyright you have an undeveloped agenda and a lack of bills that people have lined up behind,” the lobbyist said. Goodlatte “remains committed to addressing the serious problem of abusive patent litigation,” a House Judiciary aide said.
There’s more consensus on patent revamp legislation simply by virtue of the Innovation Act and other bills having been reviewed by House Judiciary in recent years, said Computer and Communications Industry Association Patent Counsel Matt Levy. “Everything’s in a holding pattern” until at least after the election, but it’s likely “we’ll see something relatively early” next year on patent legislation, he said. “I wouldn’t expect anything drastically different” in forthcoming patent legislation because there’s been no discernible reason for House Judiciary to change its approach on such bills, Levy said.
House Judiciary may have more of a head start in crafting patent bills than it has with copyright, but that hasn’t resulted in clear progress because of opposition among some patent stakeholders, said a tech lobbyist. The “array of forces” opposed to certain elements of known patent bills “isn’t going to change” with the start of a new Congress, the expert said.