Senate Passes Patent Reform Without Litigation-Related Provisions
On March 8, the Senate passed comprehensive patent reform legislation by a vote of 95-5. While almost all the litigation-related provisions were removed, one provision, placing venue for suits against the PTO in the Eastern District of Virginia, was included in the final bill.
Congress has struggled with patent reform over the past several Congresses, and a few of our posts from previous efforts can be found here and here. The latest bill, S. 23, with changes made in the Judiciary Committee, can be found here. A good summary of the provisions of the bill as passed by the Senate written by the Congressional Research Service can be found here.
There are few provisions left which will alter patent litigation lawsuits. The proposal to alter willfulness claims in the original bill was eliminated in Committee, and other litigation provisions affecting venue and damages were removed on the Senate floor through a manager’s amendment, which can be found here. The bill also left out a proposal for a pilot program in district courts to provide training and additional resources for judges willing to take patent cases, which appeared in earlier versions of patent reform legislation.
The one venue provision that survived the manager’s amendment has a direct effect on Virginia. That provision changes the venue for litigation against the Patent and Trademark Office from the federal court in Washington to the Eastern District of Virginia, since the PTO is located in Alexandria. The bill also effectively eliminates false patent marking claims under 35 U.S.C. 292(a) and eliminates the best mode defense to claims of patent infringement.
The legislation now moves to the House of Representatives, which held subcommittee hearings on patent reform on March 9 and 10. There are indications that the Senate attempted to address some of the House's concerns in the manager's amendment, and so hopes for ultimate enactment of the legislation are higher than in past years. Even if passed by the House and enacted into law, though, patent reform will be delayed a bit longer. The effective date of the Act is one year after enactment and applies to any patent issued after that effective date.
