Lack of Stakeholder Consensus on 101 Effort

The sponsors of the promised bill to reform 35 U.S.C. § 101 are struggling to regain earlier momentum. It seems that the inclusion of the 112(f) provision (designed to bring Big Tech to the table on an otherwise unwelcome reform effort) has not been effective. Worse, the 112 provision has actually turned off some in Bio/Pharma. As such, the 101 bill promised back in July now appears to be slipping to October.

Given the recent complications, the Stronger Patents Act has been dusted off to remind Big Tech that, at least in theory, there could be much worse legislative consequences than a more patent friendly 101 statute.

The Stronger Patents Act has been proposed every year for the past five years with little change in content. The bill has not gotten serious traction as it is overly ambitious in scope, and arguably a reform wish list of one industry—Big Pharma. The major changes proposed by the bill would virtually eliminate the Patent Trial & Appeal Board (PTAB) and reinvigorate injunctive relief. Needless to say serial defendant Tech companies are not at all supportive.

So, why was there a hearing this past Wednesday on this overly ambitious and perennially stagnant bill when a much narrower effort to reform 101 is stalling?

Seems to me that this development communicates more desperation than actual threat to Tech. (assuming the goal is to bring Big Tech to the 101 table as opposed to just pandering to a lobby funding some reelection efforts). In any event, the distraction away from the 101 effort is not good news for those hoping to see (like me) some change to 101 this calendar year. I think we can forget that pipe dream now.