The field of patent law is in a state of flux. Just four years after the America Invents Act (“AIA”) went into effect, Congress is taking up the issue once again, this time seeking to pass legislation to curb abusive patent litigation. Already in 2015, the House and Senate Judiciary Committees have introduced, considered, and passed bipartisan patent litigation reform in each chamber. The House and Senate bills are similar in many respects, and share a general consensus that legislation should deal with abusive litigation through increased transparency, more limited discovery, heightened pleading standards, and “loser pays” fee shifting.

There are, however, several key differences between the bills that are likely to be the subject of much debate. For example, the Court of Appeals for the Federal Circuit just last week issued a 6-5 en banc decision letting stand the standard of review used by the U.S. Patent and Trademark Office (“PTO”) in post-grant proceedings authorized by the AIA1—a standard the Senate bill would leave unchanged in accord with the majority decision and that the House bill would change to a narrower standard supported by the dissenting judges.