IP Update - Patent Law Reform 2011 - August 5, 2011

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The U.S. House of Representatives voted by a margin of 304 to 117 on June 23, 2011, to reform U.S. patent laws by approving the America Invents Act (H.R. 1249). This vote follows approval in the U.S. Senate of very similar legislation (S. 23) on March 8, 2011.

The House and Senate now will begin a process of reviewing the two versions of the legislation, aiming to adopt a final bill that the President can sign into law. On August 2, 2011, Senate Majority Leader Harry M. Reid filed cloture on the motion to proceed to H.R. 1249. The cloture vote, which would end debate in the Senate, is scheduled for September 6, 2011. If the cloture vote passes, the Senate would then vote on adopting H.R. 1249, in lieu of S. 23. If the Senate approves the House version of the legislation, the President would have the opportunity to sign the legislation. The President has previously indicated his support for patent law reform, and we expect he will sign this legislation if and when it is presented to him.

Prior to the final vote on the bill, the House had approved a manager’s amendment offered by Rep. Lamar Smith by a vote of 283 to 140. The manager’s amendment changed the language of the bill that had been previously reported out of the Judiciary Committee in several ways. The most significant change related to the establishment of a patent and trademark fee reserve fund overseen by the Congressional Appropriations Committee. Original H.R. 1249, like S. 23, gave the Director of the USPTO authority to use the fund without fiscal year limitations and implied this authority was without other limitations, such as approval by Congress. The amendment also addressed other sections of the legislation, including expanding prior user rights, synchronizing the timing requirements for post-grant review and inter partes review with S. 23, authorizing certain USPTO fee increases, authorizing the USPTO’s Track I prioritized examination, limiting the fraud exception to supplemental examination to circumstances where the USPTO Director becomes aware of the fraud, and limiting enforcement of DNA diagnostic patents when a patient needs a second opinion. The House also approved an amendment proposed by Rep. John Conyers, Jr. maintaining the 60-day deadline period to apply for patent term extension.

Please see full update below for more information.

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