Leahy’s Patent Reform Falling Short

Senator Patrick Leahy’s Patent Transparency and Improvements Act (S.B. 1720) will be considered by the Senate Judiciary Committee along with a number of other Senate patent reform bills.  Digital Liberty previously wrote in support of Senator Cornyn's proposed legislation.  The plan is to have the mark up completed by mid-April.  Senator Mike Lee, a co-sponsor of the bill, is optimistic that patent reform will get done this year. 

Chairman Goodlatte’s patent reform, the Innovation Act (H.R. 3309) passed the House 325-91, and if Leahy’s bill, or whatever conglomerate the Senate comes up with passes, the bills will need to have their differences reconciled.

There are some key differences between the patent reform bills:

First, only the House bill requires a heightened standard for patent complaints.   For example, the patent holder will have to specifically identify what part of their patent was infringed upon, as well as the name and serial number of the product which supposedly violated the patent.  The House bill’s requirements will prevent patent trolls from issuing vague complaints which drive up the legal costs for troll targets. 

Secondly, the House bill would also give judges more authority in awarding attorney fees to the prevailing party, unlike the Senate bill.  However, Senator Lee said they were looking to incorporate an amendment by Senator Cornyn that would make the loser pay the winner’s fees.  This will make patent trolls think twice before they bring a bogus lawsuit to court, acting as a deterrent to abusive patent lawsuits.

Lastly, the House bill incorporates discovery reform.  Oftentimes, patent trolls will seek extensive discovery to drive up the costs for defendants, and pressure them to settle out of court.  Under the House bill, only after a construction ruling could most discovery take place.

It seems that Leahy’s Senate bill is falling short.  Digital Liberty supports patent reform that includes heightened pleading, fee shifting, and discovery reform, all of which Leahy’s bill currently lacks.  These litigation reforms would make great strides in deterring abusive patent litigation, and should be seriously considered when the bills are reconciled.