Patent Reform Battle Shifts to Senate

Having failed to stop patent reform in the U.S. House of Representatives, opponents are now focusing on the Senate.

In a letter sent Tuesday to Senate leaders, more than 400 organizations ranging from biotech to grocers urged lawmakers to make significant changes to legislation approved on Sept. 7 by the House.

With a similar version to the House bill already approved by the Senate Judiciary Committee, the letter said the current legislation will create “uncertainty and weaken” the enforceability of validly issued patents.

“No compelling case has been made for a bill written in this fashion. It is based on claims of a crisis in the current patent system that does not exist, supported by selective assertions which do not hold up under scrutiny,” the letter states. “We believe the authors of the legislation must make fundamental changes to the legislation if it is to work for all American innovators.”

Strongly supported by the technology industry, the House bill narrows the definition of willful infringement and limits infringement damage awards to the actual value of the technology involved instead of the overall value of a completed product.

The bill, passed on a 225-175 vote, also creates a “second window” to challenge patents issued by the Patent and Trademark Office. In addition, the legislation would create a first-inventor-to-file system to replace the current first-to-invent standard, moving the United States closer to international standards.

“Some of the proposed reform provisions, such as an expanded apportionment of damages, [and] an indefinite post-grant opposition process…pose serious negative consequences for continued innovation and American technological leadership in a competitive global economy,” the letter states.

House and Senate leaders have repeatedly stressed that the legislation is a work in progress, promising opponents the final version will incorporate changes aimed at appeasing the concerns of the biotechnology, pharmaceutical and manufacturing industries.

“We admit this bill isn’t perfect,” bill co-sponsor Howard Berman, D-Calif., chairman of the House Courts, Internet and Intellectual Property Subcommittee, said Sept. 7. “This is really complicated stuff. We will continue working for compromise.”

Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee, also called the bill a work in progress. “We made changes to accommodate the minority side and it won’t be final until we come out of conference [with the Senate].”