Proponents of Further Reform Beginning to Scramble
This time last year, further patent reform efforts had steamrolled their way through the House. While the House passed the Goodlatte Bill with surprising urgency, efforts on the Senate side became hopelessly deadlocked last spring on a variety of contentious issues. Since that time, a significant amount of change has come to the world of patent law thanks to a number of significant Supreme Court rulings. At the same time, the administrative patentability trials of the 2011 America Invents Act (AIA) continue to wreak havoc on the business model of patent assertion entities.
So, it is no surprise that further patent reform has lost some of its 2013 mojo on Capitol Hill.
During last week's State of the Union proponents of further patent reform bemoaned the failure of the president to mention it as an agenda item, as he had done on two previous occasions. At roughly the same time, Director of the USPTO Michelle Lee was fielding questions from the Senate (at her confirmation hearing) on whether or not the patentability trials of the AIA were unfair to patentees, and whether or not further reform was needed at all. Shortly thereafter a number of anti-patent "coalitions" began churning out press releases about the need for further reform, and pointing to the past Congressional momentum. Problem is, many of these lobbyists are still living in 2013.
While there has been much hype on demand letter practices used to shake down retailers and small businesses, this practice is limited to a very small group of bad actors. Should there be a law to prevent such idiocy? Yes, of course. But, the push to further constrain all patent rights in light of this isolated abuse is unwarranted. Surely, there is always additional fine tuning to be done. Yet, the body language coming from lawmakers is that any further bill will be much more focused, and targeted on bad actors. A recalibration away from the systemic changes of the Goodlatte bill sounds about right to me.