On April 29, Senate Judiciary Committee Chairman Charles Grassley (R-IA), along with fellow Committee members Orrin Hatch (R-UT), John Cornyn (R-TX), Mike Lee (R-UT), Patrick Leahy (D-VT), Chuck Schumer (D-NY), and Amy Klobuchar (D-MN), introduced the Protecting American Talent and Entrepreneurship Act (S.1137). Viewed as the Senate counterpart to the Innovation Act (H.R.9), the legislation takes a similar approach in targeting abusive patent litigation practices. However, there are notable differences between the bills' primary litigation reform provisions, including those related to pleading requirements, discovery rules, fee shifting, customer stay and post-issuance procedures.
Soon after introducing S. 1137, the Senate Judiciary Committee held a legislative hearing to discuss these and other key bill provisions. Bill supporters, including Committee members and stakeholder witnesses, noted that a number of the bill's key provisions were the result of negotiated compromises, aimed at balancing the need to effectively deter patent litigation abuse without hindering innovation by limiting patent owners' rights to enforce their patents against infringers. Nevertheless, some Committee members expressed continued concern that some of the bill's litigation reform provisions are overly broad and do not adequately differentiate between good and bad actors. Earlier this week, Chairman Grassley placed S. 1137 on the Committee calendar and announced his intention to mark up the bill after the Memorial Day recess. At the moment, the parties are at an impasse over proposed inter-partes review language. Given this and other outstanding issues, it is unclear as to how soon the markup will occur after the Senate returns from recess.
There is similar uncertainty in the House, where Judiciary Committee Chairman Goodlatte recently delayed the markup of H.R. 9, due to multiple concerns raised – including by some in House Leadership. As the House and Senate Judiciary Committees prepare their respective bills for markup, it is important to note that elements from other stand-alone bills, most notably the STRONG Patents Act (S.632) and the TROL Act (H.R.2045), could also be incorporated into the primary legislation.