Yesterday, the Senate again delayed consideration of pending legislation designed to curb the excesses of so-called “patent trolls.”
Senate Judiciary Committee Chairman Patrick Leahy (D-VT) announced on Thursday that he’s still meeting with other key senators to hammer out a “manager’s amendment” acceptable to all sides.
“I am continuing work with other members of the committee,” Leahy said, to address constructive comments from both sides about the patent legislation on our agenda.”
Leahy also noted that his committee had “settled the vast majority of issues” in the bill, which include heightened pleading requirements, limits on discovery, fee shifting, demand letters, stays on customer suits, and enhanced transparency.
Several recent developments have affected the progress of the “troll reform” effort.
First, several weeks ago, Senators John Cornyn (R-TX) and Chuck Schumer (D-NY) circulated a draft compromise proposal that split the difference on many contentious issues, including fee shifting. For instance, rather than presumptively award fees to the prevailing party, the compromise language would lower the burden for punishable conduct from “exceptional” to “not objectively reasonable.”
That draft compromise, coupled with a long-promised April 24 committee hearing during which it would be considered, apparently sparked a surge of patent infringement complaint filed on April 23 by numerous patent assertion entities concerned about imminent restrictions on their practices. According to IP Law 360, more patent cases were filed on April 23 than on any other day in at least the last 14 years.
Second, last week, the Supreme Court weighed in on the attorney fees issue for the first time in years and significantly lowered the standard for fee awards. It’s possible that the high court’s rulings stymied some of the momentum behind reform efforts.
In any event, in the coming weeks, Leahy is expected to revive those efforts, so watch this space for further updates.