Momentum builds for patent bill

The Senate on Tuesday moved closer to an agreement on an overhaul of the federal patent system, setting the stage for final passage of the bill this week, possibly as early as today.

Leahy

By a 97-2 vote, the Senate adopted a manager’s amendment offered by Judiciary Chairman Patrick J. Leahy, D-Vt., adding a spate of bipartisan changes to the legislation (S 23).

While the vote helped build momentum for Senate passage of the bill, the measure faces an uncertain future in the House, where lawmakers are drafting their own version of the legislation.

With the Senate’s adoption of the manager’s amendment, Leahy said, “I believe we will move very close to a consensus bill the Senate can and should pass to help create good jobs, encourage innovation and strengthen our recovering economy.”

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The manager’s amendment — cosponsored by the Judiciary panel’s top Republican, Charles E. Grassley of Iowa, and panel member Jon Kyl, R-Ariz. — would incorporate language to allow the U.S. Patent and Trademark Office (PTO) to keep all the fees it collects.

Supporters of that proposal argue that would help the patent office as it struggles with a backlog of patent applications, a shortage of examiners and outdated computer systems.

The Obama administration has backed that language. In a conference call with reporters Tuesday, Commerce Secretary Gary Locke warned that if the PTO is not allowed to keep all the fees it collects, “we actually could be going backward and the backlog could increase.”

The amendment also includes language to create a pilot program to review the validity of business method patents, and it would strike certain damages and venue provisions that are no longer necessary in light of recent court decisions — a move suggested by House lawmakers.

In a statement Tuesday, the Coalition for Patent Fairness — a group of large technology companies and a leading opponent of Leahy’s bill — praised adoption of the manager’s amendment, but made it clear it is not ready to support the underlying measure.

“Thanks to the manager’s amendment, the bill is moving in a promising direction and we’ll be working with senators to improve the legislation as we go forward,” the group said. The coalition also said it will support an anticipated amendment by Jim Risch, R-Idaho, to strike provisions related to a procedure for challenging patents known as inter partes reexamination.

Adoption of the manager’s amendment marks significant progress on the long-pending patent overhaul, and another looming obstacle could prove less daunting than first thought.

A key component of the underlying bill would shift the U.S. patent system to basing patent awards on which inventor is “first to file” rather than on the current criteria of “first to invent.” Some individual inventors and smaller companies oppose that language, arguing that it puts them at a disadvantage against big corporations with more resources.

California Democrat Dianne Feinstein will likely offer an amendment Wednesday to strike that “first to file” language from the bill. But Feinstein voiced pessimism late Tuesday on its prospects for adoption. “I think I’ll lose,” she said.

But as the Senate advanced toward final passage, House Judiciary Chairman Lamar Smith, R-Texas, underscored on Tuesday that the House is writing its own patent legislation. “I am pleased with the Senate’s progress,” he said. “In the next few weeks, I look forward to introducing a House patent reform bill and marking it up in committee.”

Also on Tuesday, Democrats fended off a GOP effort to add an unrelated debt limit measure to the patent bill.

The Senate voted, 52-47, to table — and thus, kill — a proposal from Republicans Patrick J. Toomey of Pennsylvania and David Vitter of Louisiana aimed at easing public fears about the risks of defaulting on federal debt payments. The proposal is designed to avoid default by prioritizing payments to holders of government bonds if the current $14.3 trillion debt limit is not raised.

Joanna Anderson writes for CQ. Keith Perine and Niels Lesniewski contributed to this story.

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