Patent Reform Slows Down in Congress

by Dennis Crouch

Acting in bi-partisan fashion, leadership in the House of Representatives has reportedly removed Rep. Goodlatte’s Innovation Act (H.R. 9) from House Floor consideration for this summer – indicating that the bill is not yet ready for a consensus vote.  (Summer session typically runs through the end of July with a break for the month of August).

Some amount of opposition had been building within Congress, including a joint press conference yesterday that included U.S. Representatives John Conyers (D-Mich.), Thomas Massie (R-Ky.), Bill Foster (D-Ill.), and Scott Peters (D-Calif.) as well as Senators Chris Coons (D-Del.) and David Vitter. In their press release, the group wrote that “H.R. 9 is strongly opposed by inventors, small businesses, venture capitalists, startup communities, and manufacturing, technology, and life sciences companies.”

A compromise bill has some chance this fall and we can expect more aggressive PR campaigns showing the woes of patent trolls as well as the benefits of patent-driven innovation.

39 thoughts on “Patent Reform Slows Down in Congress

  1. 8

    It is pretty clear at this point that alarms are sounding. New radical reform of the patent system is ill advised. It is also clear at this point that “reform” is being driven by large corporate interests. Reform no longer passes the sniff test of being in the best interest of the USA. The burn-it-down reform is so clearly from big international corporations that many members of Congress are afraid to be near it and voting for the build-it-back-up reform would mean many years of big international corporations punishing you.

    Welcome to inside the beltway.

  2. 7

    I don’t think this speaks much to the political saliency of the patent issue in the house at this moment, mainly because the Iran deal will need to occupy the summer session. Time does kill all deals however, so a future bill will likely look differently than the latest efforts.

    1. 7.1

      Martin, I don’t think this really is the reason that Congress is pausing. There are many legitimate groups that are characterized as not being big international businesses who strongly oppose the various bills except for the IPR reforms.

      I talked to a now retired Senator a few years ago, high up in the leadership of the majority. He offered that he was concerned that patent law was too complicated a topic for congress to legislate unless there was an almost universal consensus that the legislation was both necessary and limited.

      I can only hope that most congressmen and senators have this kind of wisdom and prudence.


          Martin, why don’t you educate yourself about our patent system? Why do you get on here and spew bile day after day because you were sued by IBM.

          Figure out that your knowledge is limited. Expand your horizons and learn more about the patent system. It may be that your situation is not the best, but it is but one situation. Please try to educate yourself.


            And let’s remember Martin that your patent problems are—by your own admissions–because you ignored the patent system.

  3. 6

    Has anyone noticed a sudden decline in computerized biz method innovation since the Alice decision?

    Me neither.

    Please let me know when that happens. Because patents are sooper dooper important for promoting “innovation” in that area. Right? Sure they are.

    1. 6.1

      Another (yawning) application of the “B-b-b-but for” having patents rationale – and another example of Malcolm’s inability to comprehend options in patent law.

      Go figure.

    2. 6.2

      This is great! Can you please quantify this for us? Thanks in advance.

      And while you’re at it, please let us know when you are planning to publicly defend your “112(f) does not allow functional claiming” position.

    3. 6.3

      I know of several early stage startups who’ll likely pull the plug if they don’t receive their patent.

      Most startups fail so likely not a huge long term impact, but they are relying on their patent application for investors, etc.

      Keep in mind, we needed many patent reforms. KSR was needed since the Fed Cir standard was too narrow, same with indefiniteness, etc.

      But I believe they’ve gone too far with 101 and some other reforms.

      We won’t know the long term impact for a while.

  4. 5

    The only reform in the current bills that would be beneficial to innovation is the venue provision in the House bill. The other provisions are useful only to big businesses that want to limit payouts without improving the system.

    Of course, some provisions are useful to no one. The expanded pleading requirements will be soon implemented by the courts without Congressional involvement.

    The fee shifting will apply only in DCs that don’t cater to trolls and aren’t materially different from Octane in practice. A strict fee shifting requirement might be effective but the bills currently are full of weasley exceptions about objective reasonableness.

    The discovery reform helps only big businesses that spend millions working over their documents. Actual startup victims of patent trolls don’t have that many documents in so many incompatible systems to search or so many steps to vet them.

    The IPR disasters will be in full force in both bills, from the loss of BRI to liberal amendment opportunities for trolls to abuse the system.

    Yes, the only reform that matters is the venue revision that might overturn the CAFC’s abolition of our existing venue statute. Taking cases out of troll jurisdictions will do a lot to improve things. But let’s not get excited until we see a Senate bill with a venue provision.

    Maybe it’s better to wait for 2017.

    1. 5.1

      In case you were not aware of the real-world effects, strict fee shifting is a feature and not a bug to the Big Corp spend-a-thon capability as litigation battles will drive a “sky’s the limit, just don’t lose” mentality that the little guys just won’t be able to compete in.

    2. 5.2

      Owen, to me, the ability to amend is a side issue. I have no idea why that was even placed in the legislation. New claims, not examined, do not belong in a patent at all. I would like to see the ability to amend removed from IPRs.

      If a patent owner needs narrower claims, file a reissue after the IPR is final.


          DanH, the patent still exists. I don’t see any grounds for denying a reissue presenting new claims with additional limitations not of issue in the IPR.

          Recall, the reissue application is a “new” application that has the benefit of the filing date etc. of the patent it will replace. One cannot simply deny the reissue application on the basis of “res judicata” or some such.

          I agree that the new claims cannot be the same as the cancelled claims in the issued patent. But other than that, I don’t see the problem.

          There is the practical problem that reissues take an enormous amount of time despite that they are supposed to be treated with dispatch. Another shining example of good management from the PTO providing the slowest examination for the most important patents, while granting broad, functionally claimed business method patents without a blush, and with their own, special rubber stamp that bears the image of Alfred E. Newman grinning back with his trademarked slogan, “What — Me Worry?”

          One might actually think the commissioner might be from IBM to provide this kind of leadership, this kind of superior management.


            Given that rubber stamping of any kind is bad,…

            Ned your inte11ectual dishonesty and smear job really does come to the border of libel here.

            You are warned.


                Your stand here is remarkably akin to the “your guilty” thing that you are whinin about elsewhere today.

                Being a public figure does not open you up to unlimited (or any) libel.

                Shape up – the denigration tactics don’t do anything for you. They are nothing but a cheap shot, given that the person you smear is not a poster here to respond.

  5. 4

    One wonders if the “woes of Patent Tr011s” will include the Executive response to Ron Katznelson’s call for that branch to not engage in what amounts to be pure propaganda….

    Or will the Executive Branch keep up with its record breaking string of lack of transperancy…?

      1. 4.2.1

        Your attempted deflection of politics aside, I see that you offer nothing of substance (again).

        Go figure.


          deflection of politics


          Try to believe it, folks: Ron Katznelson’s biggest fanboy hard at work trying to earn his Hypocrite of the Decade Award. Don’t worry, “anon”.


            There is nothing at all “hypocritical” to note your deflection and attempt to insert (falsely) a political argument that has ZERO to do with me or my post.

            But your dissembling tactics run amuck – nine years and running.

            What a chump.

      2. 4.2.2

        MM, I don’t know what your specific beef is with Senator Paul, but I see some merit in a bias against getting involved in other people’s wars.

  6. 3

    Today the Federal Circuit published three more Rule 36 affirmances against some of the worst patent holders ever. That makes at least seven Rule 36 affirmances against patentees in the last week and no Rule 36 affirmances in favor of patentees. Most of those decisions related to computer-implemented junk. I’m glad to see the CAFC learning how to save time.


    The patentee with its infamous patent on using a computer to (try to believe it) “identify available real estate” gets the smack down. Good riddance.


    link to

    The jury entered a verdict for Noble upon its Lanham Act, unfair competition and product disparagement claims and required Argentum Medical to reimburse Noble for the substantial business losses it sustained as a result of the cloud of baseless patent infringement claims that shrouded SilverSeal®. The jury also imposed punitive damages upon Gregg Silver and Tom Miller.


    I wrote about the oral arguments in this case earlier this week. The dispute here concerned fees and sanctions for the filing of a baseless lawsuit tby an attorney who never discussed the issues of the case with the patentee, and additional sanctions for misrepresentations made during the sanctioning phase of the case.

    But let’s hear more about “defendants driving up litigation costs”! That was funny stuff.

    1. 3.1

      MM, I think the issue was a whether there was a pre-filing investigation. I think the patent owner was deposed and did not answer the question that there was. The attorney handling the deposition knew that there was such a prefiling investigation, but did not “correct the record.” Apparently, the client did not know about the prefiling investigation because it was conducted by the contingent fee lawyers themselves who did not inform the client.

      So when sanctions were awarded against the client for failure to answer questions properly, the defense of the client was to say that the client did not know even though the law firm knew.

      What this illustrates is that the target of an award of attorney’s fees, at least in some cases, is misdirected at the patent owner and should be rather directed at the attorneys.

      1. 3.1.1

        That’s what malpractice claims are for, Ned. From what I heard in the oral arguments, the patent owner’s complaint is pretty straightforward – he can allege a couple breaches of duty that were the direct cause of the sanctions. Note that this was a contingent-fee attorney arguing the amount of the sanction on appeal. I doubt he’s getting paid for it – I suspect that he was trying to reduce his own exposure.

  7. 2

    Let’s see everyone’s favorite bottom-feeders can behave themselves in the meantime.

    I’m joking, of course. We all know what kind of junk is out there in the system and we all know that these people can’t help themselves when it comes to “monetizing” it. You think you’ve seen everything and then …

    Just wait and see.

  8. 1

    The job of Congress in legislating in the area of patents is to assure that they promote the progress of the useful arts and to prevent abuses of the system. The job of Congress is not rigging the system in favor of big international businesses.

    I think Congress recognizes that the proposed fixes designed to prevent abuses have gone way too far and are instead rigging the system in favor of big international businesses.

    1. 1.1

      The job of Congress in legislating in the area of patents is to assure that they promote the progress of the useful arts

      That’s not going to happen until someone comes up with a rational and practical proposal for examining and enforcing patents on computer-implemented logic.

      Until that happens, the system is effectively a leaky rowboat chained to an anvil and the reforms are going to keep coming piecemeal, either from Congress or the courts.

      1. 1.1.1

        No doubt Congress would be better employed determining the fiasco of business method patents – and who was behind them. Then they would could take up the business of fixing the system by ridding it of the Federal Circuit.


          Caveat: the Federal Circuit recently has gotten on board with taking a hard look at business method claims and at functional claims. This holds promise so my **** at the Federal Circuit for being at the center of the mess in which the patent system currently finds itself is lessened. I personally think a major cause of all the problems we have had in patent law since ’52 is centered on one individual who had far too much power and influence, and who had an agenda. But he is no longer on the court, and gradually, every one of his disastrous opinions is being addressed and overturned either by later case law, or by legislation.

          One does not appoint the fox to guard the hen house.


              You are right, anon. Blaming everything on one judge does not excuse the other judges on the court.


                I am right – just not in the way that you will allow yourself to see.

                Congress Ned – not Rich: your denigration tactics are simply inte11ectually dishonest, and you should be ashamed of yourself.


            Come on Ned, even though he made have made some dooseys of a mistake in his career, you have to admit that ol Rich did a great deal of good as well. Just because some of the things he did went a bit too far, he at least did get a lot of things done from which you currently are a beneficiary.


                He helped Congress write a law that saw the Supreme Court’s anti-patent streak come to a pause, allowing the U.S. to experience its largest ever jump in innovation.

                And that’s just the one that you asked for.

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