One Giant Step Forward (on Patent Reform)

Posted by Dana Rao, Vice President of Intellectual Property and Litigation

Thanks to UStream, I and probably tens of other patent aficionados just finished watching an eight-hour “markup” in the House Judiciary Committee. (A markup is a working meeting of a Congressional Committee at which bills and amendments are offered and voted upon.)

For those of you who have never witnessed a markup, it’s a reaffirmation that our democracy does work. Members of Congress debate, deals are struck, and roll calls are taken (listening to the voice roll calls is amazingly hypnotic, by the way, I highly encourage giving it a try if you need a moment of clarity–“Ms. Chu? Ms. Chu votes ‘Aye’). And since I was invested in the outcome, even the introduction of mysterious “second degree amendments to amendments” was filled with drama.

I have been privileged to meet with members of Congress and their staffs to make the case for patent litigation reform, as I have mentioned in prior posts. What happened tonight was exceptional and inspirational. The House Judiciary Committee reported out the Innovation Act on a vote of 33-5 in a truly bipartisan fashion with 12 Democrats joining 21 Republicans.

Everyone recognized that patent trolls are a scourge on businesses small and large. The real debate was on what to do about it. In the end, Representative Hakeem Jeffries (D-NY), with strong support from Adobe’s hometown Representative Zoe Lofgren (D-CA), offered an amendment that made this remarkable bipartisan vote possible. The Jeffries amendment clarified under what circumstances judges should not shift attorney’s fees to the prevailing party, making clear that reasonable patent infringement lawsuits will not be impacted and that plaintiffs in economic hardship will be protected.

In a previous life, I was actually a Schedule C employee in the Clinton Justice Department. I believe in access to justice for all, and reject the universal application of “loser pays” with regard to attorney’s fees — i.e., the English system. I was heartened to see that many on both sides of the aisle tonight recognized that patent litigation is a very narrow and special case where balanced fee shifting is appropriate.  Fee shifting has been in the patent act for decades (in Section 285) and updating it to address the troll phenomena is just good legislative sense.

Many thanks to Chairman Goodlatte and the entire House Judiciary Committee for the invigorating debate today, and to the 33 members of the Committee who voted to report the Innovation Act to the House floor for an eventual vote. I look forward to more improvements in the Act as this process continues.

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