The death of patent reform? Why Leahy’s legislation matters

July 09, 2014


Attempts by Senator Patrick Leahy (D-Vt.) to pass a bill that would rein in the activities of non-practicing entities—“patent trolls”—have been thwarted.  Senator Leahy, who chairs the Senate Judiciary Committee, had introduced a patent reform bill that would limit the ability of patent trolls to assert questionable infringement claims against numerous companies to extract settlements and royalties.  The bill, which would have heightened standards for pleading patent infringement and allowed for fee shifting in cases where a troll’s claims proved meritless, had been debated in committee, where Senator Leahy was about to put it up for a vote.  Before the Judiciary Committee could vote on the bill, however, Senator Leahy pulled the bill from the agenda.

Some reports indicate that Senate Majority Leader Harry Reid (D-Nev.) refused to bring the bill to the Senate floor for a vote.  Senator Leahy has indicated that Senator Reid’s refusal was based on Senator Reid’s impression that sufficient forces were aligned against the bill that it would be filibustered by both Democrats and Republicans.  Others suspect the refusal is based primarily on concerns of a few companies and universities that hold large patent portfolios that the bill would devalue their patent holdings.

Regardless of the motivations for tabling the bill, the Senate’s failure to act is frustrating to businesses that have become frequent targets of patent trolls.  The House of Representatives had already passed a patent-troll bill, 325 to 91, with huge bipartisan support.  President Obama has indicated he would sign the bill.  Passage in the Senate was the final substantial hurdle to reforming the Patent Act to limit the activities of patent trolls.  As it presently stands, it seems unlikely that the Senate bill will get any traction before the election in November.  Though Senator Leahy is open to a narrower bill or series of bills to address the problem of patent trolls, comprehensive reform is currently dead.

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