Tech Lobbyists See Limited Patent Legislation Advancement in 2017
This is unlikely to be the year for broad legislation on revamping U.S. patent law, but the incoming administration of President-elect Donald Trump is likely to be friendly to patent owners, tech lobbyists said Tuesday during an American Enterprise Institute event. Patent revamp legislation factored into the House and Senate Judiciary committees’ work in the past two Congresses but repeatedly stalled. The issue is expected to emerge again at the committee level in the 115th Congress (see 1610190047).
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House and Senate Judiciary leadership remains largely the same as in the past two Congresses, but the “practical reality” is that both committees will need to address a wide range of issues in which a patent law revamp doesn’t appear to be a top priority, said Qualcomm Vice President-Government Affairs Laurie Self. House and Senate Judiciary are still likely to examine patent litigation issues this year and advance legislation, she said. Any bills the committees push almost certainly will be narrower than past legislation like the Innovation Act, Self said. House Judiciary Chairman Bob Goodlatte, R-Va., managed to get the House to pass a version of that legislation in 2013 but the bill stalled in the Senate (see report in the May 23, 2014, issue). The act cleared the House Judiciary Committee in the 114th Congress but never got a House vote.
House and Senate Judiciary are likely to seek narrower patent legislation in the 115th Congress because many stakeholders want to see how lower courts settle on applying the Supreme Court’s recent rulings on some patent-related cases, Self said. The need for federal courts to settle on new rules on handling those issues makes it likely “the committees will gravitate to a narrower version of patent legislation,” she said. Self noted the Supreme Court ruled in June in Cuozzo Speed Technologies v. Lee that the Patent and Trademark Office's ability to institute inter partes reviews via the 2011 America Invents Act isn't subject to appeals (see 1606200028). Earlier that month, the top court also struck down the U.S. Court of Appeals for the Federal Circuit’s standards for awarding enhanced punitive damages in two consolidated patent infringement cases -- Halo Electronics v. Pulse Electronics and Stryker v. Zimmer (see 1606130051).
Lower courts are also developing new rules for determining attorneys’ fee shifting in patent cases, after the Supreme Court’s 2014 rulings in Highmark v. Allcare Health Management Systems and Octane Fitness v. Icon Health & Fitness that struck down the Federal Circuit’s existing fee shifting rules (see report in the May 1, 2014, issue), said Samsung Senior Counsel Karin Norton. She said she has “no idea” how patent legislation may develop this Congress but believes there will be a continued push to revamp the rules for seeking an International Trade Commission patent infringement investigation. The Trade Protection Not Troll Protection Act, which failed to advance the past two Congresses, would require patent assertion entities to have a “vested interest” in a patent before the PAE could seek an ITC infringement investigation (see 1603220060).
The Internet Association is hopeful the Trump administration and Congress will take actions that will promote a strong patent system given Trump’s focus on domestic economic issues, said Director-Government Affairs Ellen Schrantz. Patent protections are important in promoting domestic job growth and “our innovation economy,” she said. Reforms to rules on the court venue for patent infringement cases are key to ensuring a strong patent system, Schrantz said. The Supreme Court is set this term to review 28 U.S.C. Section 1400(b), which requires a plaintiff to bring a patent infringement lawsuit only in a U.S. District Court where the defendant resides or has an “established place of business.” Oral argument on the review, sought by liquid sweetener company Heartland Food Products Group, hasn't been scheduled. The Electronic Frontier Foundation and top tech firms supported Heartland’s petition for a writ of certiorari (see 1610140042).
Schrantz and others highlighted the need for Congress to support improvements to patent examination quality, including continued support for PTO programs aimed at addressing patent quality issues during the examination process. If PTO can “solve patent quality problems at the outset, that will take care” of other patent issues that emerge post grant, Norton said. She noted the importance of PTO’s Patent Trial and Appeal Board as a “gatekeeper” to weed out low-quality patents. PTAB proceedings aren’t an alternative to litigation but provide another track for address patent quality issues, Norton said.