Legal Alert: Has the Tortoise Become the Hare? Patent Litigation Reform Gaining Momentum

by Eversheds Sutherland (US) LLP
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After the years-long process leading up to the enactment of the America Invents Act, stakeholders in the patent field could be forgiven for assuming that this year’s new legislative and administrative proposals for curbing patent litigation abuses were nothing more than the beginning of a long conversation. But recent developments show that those who wish to be heard may need to act more quickly than they previously expected.

The U.S. Congress is now considering seven bills purporting to enact patent litigation reform; at least one of them, Rep. Bob Goodlatte’s H.R. 3309, could be the subject of important committee action this week. The Obama administration also has renewed its commitment to the program it proposed earlier this year, and is moving forward with its own legislative proposal, as well as pursuing initiatives at the U.S. Patent and Trademark Office and the Federal Trade Commission.

Several factors appear to be pushing this issue to the front of the legislative line, including:

Growing Attention from Popular Media

As non-practicing entities increased their licensing demands on Main Street’s businesses, the popular media’s coverage of patent-related issues has soared. Using just one national newspaper as an example, in 2011, USAToday published 59 articles that mentioned patents; through October of this year, it has published 194. When USAToday’s editors perceive this kind of concern among their readers, it cannot be denied that the proper role of patents and their enforcement in the U.S. economy has left the exclusive domain of high tech companies, and has become an issue that elected officials feel compelled to address.

The Search for Bipartisan Policy Initiatives

With polls giving the U.S. Congress its lowest approval rating in recent memory, lawmakers on both sides of the aisle in both houses are searching for legislation that their constituents want and that will actually pass. Apparently “patent trolls” are providing a safe common enemy for legislative attack.

Impending Mid-Term Election Year

When Congress returns to work in 2014, it will be focused on the typically partisan process of reelecting its members. Because this atmosphere makes compromise more difficult, calendar year 2013 may be the only window of time to enact any legislation for the foreseeable future.

In light of all of these factors, businesses that have a stake in the U.S. patent litigation system should, at the very least, inform themselves about the features of various proposals. Not surprisingly, some proposals are more controversial than others. Even if there is a consensus on the need to act, all stakeholders have an interest in ensuring that the cure is not worse than the disease.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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