With the final session of the 114th Congress under way, the likelihood of Congress taking up and passing comprehensive patent litigation reform legislation becomes more and more remote. From a timing standpoint alone, the abbreviated congressional calendar in a Presidential election year would make it very difficult for House and Senate bill supporters to secure floor time, particularly with comprehensive energy and trade secret protection bills already in the queue.
Regarding the legislation itself, stakeholders from the pharmaceutical and biotechnology industries, as well as universities and others, remain concerned about certain litigation reform provisions in the reported House and Senate bills (H.R. 9 / S. 1137). Proposed changes to the Inter Partes Review Process (“IPR”) process continue to be a major sticking point, although discussions continue between industry stakeholders and congressional negotiators. Furthermore, as previously reported, the necessity of key bill provisions has also been questioned, with critics citing the Supreme Court’s decision on fee shifting in Octane Fitness, as well as newly implemented pleading standards. Barring a major breakthrough in negotiations, therefore, it appears that the legislative debate will be renewed when the 115th Congress convenes next year.
