Patent reform suffered a massive setback today when Senator Patrick Leahy, as chair of the Judiciary Committee, announced that he is taking patent reform “off the agenda.” We understand that other senators—particularly Sens. Chuck Schumer and John Cornyn—were still working hard to reach a bipartisan deal. Just as they were ready to release a new bill, Leahy stepped in to kill the process.
The Senate’s failure is especially galling given that the House overwhelmingly passed the Innovation Act in December. The strong patent reform bill passed with a 325-91 vote that included a majority of both Republicans and Democrats. Meanwhile, President Barack Obama was slated to be the "great slayer of patent trolls." This is an issue that crosses both sides of the aisle; when small businesses are facing extortionate patent threats, politics must be set aside. And Leahy has gone ahead and thrown that all away.
Leahy’s stated reason for killing the bill was concerns that the House-passed bill “would have severe unintended consequences on legitimate patent holders.” But Leahy is just wrong about the Innovation Act. When we look at what was in it, we see reform that would have little—if any—impact on legitimate claims.
For example, the Innovation Act included provisions that would allow a manufacturer to step into the shoes of its customer and defend its products against claims of infringement. Legitimate patent holders should not be concerned about this: they could protect their rights through one lawsuit against a manufacturer, instead of suing countless customers. This provision does not prevent a legitimate patent holder from protecting its invention; in fact, it makes it easier by consolidating its claims into one forum.
As another example, the Innovation Act required a plaintiff to provide details in its complaint about how a defendant supposedly infringed its patent. This is a sensible pleading requirement. A patent holder should know at the outset what their patent claims and how it believes a defendant infringes. A patent holder, if its claim is legitimate, would suffer no harm from this requirement—their lawyers are already required to do this sort of analysis before bringing a claim.
Today is not the first time Leahy has disappointed us on the IP front. Remember PIPA, the Senate's counterpart to the awful censorship bill SOPA? Leahy introduced that horrendous piece of legislation, throwing the public interest under the bus in favor of moneyed interests.
This case is no different. Leahy effectively deferred a problem—a serious problem he readily admits exists—in order to please the pharmaceutical, biotech, and university lobbies that are hardly the victims of patent trolls anyway. (In the case of universities, they sometimes fuel patent trolls.) Over the last few years especially, we've seen a massive rise in the number of troll cases aimed at tech startups and Main Street businesses—app developers getting hit for implementing default features, offices getting sued for running networked scanners, cafés targeted for offering Wi-Fi.
While today’s announcement is disappointing, this is not the end of the road for patent reform. Senator Leahy writes, “There is not sufficient support behind any comprehensive deal.” But there is massive support from industry and bipartisan support within Congress for reform. And the President has repeatedly signaled he will sign a bill. What Senator Leahy really means, is that he does not support a deal and is willing to be the final roadblock. We must keep up the pressure. It may take a bit longer, but legislative reform will come.