The second round of patent reform in the Senate, the Patent Transparency and Improvements Act, which follows from a similar House bill (already passed by the House) has been taken off the Senate Judiciary Committee’s agenda.
As a result, we will not see the second round of patent reform until maybe next year. Those of us who fear that the second round of patent reform constituted some movement of the legislative branch into the judiciary branch welcome this change.
There are a number of actions and movements that are closing the gap in patent litigation, that the second round of patent reform was trying to close. In the recent Supreme Court decisions in the Octane Fitness, LLC v. Icon Health & Fitness, and Highmark Inc. v. Allcare Health Mgmt. Sys cases, the ability to shift the fees improved. The proposed amendment to the Federal Rules of the Civil Procedure would, if enacted, eliminate the use of forms and make the pleading requirements the heightened pleading requirement presented by the Supreme Court in Iqbal andTwombly. With increased ability to shift the fees, and heightened pleading requirements, two of the issues that the second round of patent reform was trying to resolve are already being solved by the judiciary. The judiciary could also move forward streamlining discovery which would reduce the cost of litigation. The one issue left for consideration is the harassment of end users, which can be resolved at the state level.
Maybe we will not see the second round of patent reform next year.