There are currently three bills introduced so far this Congress, although the TROL Act will likely be introduced in the middle of April. The Senate bill, the STRONG Act, is not really patent reform; it would actually roll back many of the improvements of the last few years.
Rep. Goodlatte reintroduced the Innovation Act on February 5, 2015. This time around the bill has 19 co-sponsors, made up of 10 Democrats and 9 Republicans. This is truly a bipartisan bill.
The Innovation Act addresses every area of reform that’s being considered. It raises the pleading requirements for the complaint in patent infringement cases. The complaint is supposed to tell the defendant what it is accused of, but there’s a quirk that allows patent infringement complaints to be quite vague. The bill requires the identification of patent claims asserted, with details about the accused methods or acts, the principal business of the party alleging infringement, and the real parties of interest. Like the Patent Abuse Reduction Act, the bill also makes it possible to add any real party in interest to the litigation. This would matter in the case where a patent troll technically owns the patent, but a large percentage of the income goes to a larger company; the larger company could be brought into the suit under the bill.
The bill also addresses the cost of discovery in patent cases, which run into the millions of dollars. The bill defines “core documentary evidence,” which the producing party pays for. For any other discovery, if you request it, you pay for it. The bill would also put discovery mostly on hold until claim construction is complete.
The bill includes a cost and fee-shifting provision. Unlike the SHIELD Act, this fee-shifting can go either way, and no bond is required, unlike the Patent Litigation Integrity Act. There are exceptions if the loser’s positions were “objectively reasonable and substantially justified” or if it would be unjust to award fees.
The bill also adds protections for end users. The intent of the bill is to allow a manufacturer to step in and essentially take over the case. The end user’s case would be completely on hold until the case against the manufacturer is resolved.
The STRONG Act was introduced by Sen. Coons (D-DE) and co-sponsored by Sens. Durbin (D-IL) and Hirono (D-HI), all of whom oppose the Innovation Act. The STRONG Act does a few things. Its primary focus is on changing the rules for reviewing patents at the USPTO to slant them towards patent owners.
First, it changes inter partes review and post grant review so that they are just as imbalanced as trial court litigation. It would take clear and convincing evidence to invalidate a patent, and the claim construction rules would be changed to use the same standard as the district court. The rules would also change so that third parties could no longer file petitions for review.
The STRONG Act also changes the rules for ex parte reexamination. Accused infringers would have one year to file their reexamination requests after a complaint is served.
The STRONG Act changes the law for district court litigation. It would undo the Seagate decision and lower the burden of proof for willful infringement. And it would undo the Supreme Court’s decision in Limelight v. Akamai, which would make it easier to prove inducement to infringe a patent.
There’s also a giveaway to universities, making them eligible for reduced fees at the USPTO.
The last major feature of the bill is to preempt all state legislation regarding bad faith demand letters and hand over enforcement to the FTC. The bad faith provision would cover only flat out falsehoods, and claiming good faith would be a defense. In other words, it would be fairly toothless.
Rep. Conyers (D-MI) introduced this bill on April 16, 2015. It’s basic purpose is to end fee diversion from the US Patent & Trademark Office. The USPTO collects more than enough in fees to cover its expenses, but Congress takes some of those fees for other uses. The Innovation Protection Act would essentially end that practice.
The Innovation Protection Act was originally co-sponsored by Sensenbrenner (R-WI), Nadler (D-NY), Franks (R-AZ), Lofgren (D-CA), Collins (R-GA), Deutch (D-FL), Rohrabacher (R-CA), and Jeffries (D-NY).
This bill is unlikely to move this Congress.
