Congress to Pass Point of No Return Today?

Past the point of no return

No backward glances

Our games of make-believe are at an end. (Past the Point of No Return, Phantom of the Opera)

Today, Congress returns from summer recess to begin the Fall term. The first order of legislative business for the Senate will be to vote on a cloture motion to preclude further debate (beyond a limited and fixed schedule) of the Leahy-Smith America Invents Act. The vote is scheduled for later this evening and can be viewed on C-span.

As explained in early August, while there are differences with H.R. 1249 and S.23, most notably concerns over fee diversion, the Senate intends to simply adopt the House bill. The adoption of the House bill will prevent further back-and-forth between the Senate and House on legislation that is far too esoteric for the average voter. On the heels of last week’s dismal job report, and with elections upcoming, Congress is eager to pass something—anything –that they can sell to the masses as a job’s stimulus. With the Leahy-Smith America Invents Act being the only bill even close to passage in the near term, any lingering concerns over the merits of this bill are likely to be muted quickly. The Senate is essentially fast tracking the House bill so that  it may be forwarded on to the White House for enactment this month.

It is also expected that President Obama will be selling patent reform to the public during his scheduled speech on Thursday. The administration appears poised to tout the importance of technology in today’s world economy. 200,000 jobs are also routinely identified as a by-product of the bill. I don’t know about all of that, but at the very least the USPTO will be hiring.

See my previous posts on the immediate change to patent reexamination practice upon passage of the Leahy Smith America Invents Act. Also, see these posts (here) and (here) on the potential impact on litigation strategy.