Patent reform is once again on the Senate Judiciary Committee's legislative agenda. S.23--the Patent Reform Act of 2011--was introduced on the Senate floor by Committee Chairman Patrick Leahy (D-VT) on January 25, 2011. The bill, which resembles previous reforms, is co-sponsored by eight: three Republicans, four Democrats, and one Independent.
In his introductory remarks on the floor, Leahy suggested that failing to pass patent reform this year would allow China to dominate the world in innovation activity. Quoting a Newsweek study published last year, he said that only "41 percent of Americans believe that the United States is staying ahead of China on innovation. A Thompson Reuters analysis has already predicted that China will outpace the United States in patent filings this year. China, in fact, has a specific plan not just to overtake the United States this year in patent applications, but to more than quadruple its patent filings over the next 5 years." Leahy also called for reforming the patent system to "stimulate the American economy" through innovation. He quoted Thomas Freidman, who wrote "We might be able to stimulate our way back to stability, but we can only invent our way back to prosperity."
Senatory Orrin Hatch (R-UT), also speaking on the Senate floor in support of S. 23, noted that patent reform was needed to address the backlog of 700,000 patent applications pending in the Patent Office. He said that number "reflects the vibrant, innovative spirit that has made America a world-wide leader in science, engineering, and technology, but also represents dynamic economic growth waiting to be unleashed."
The current version of patent reform looks like previous ones. A quick summary of the major provisions is shown below:
Sec. 1: Short Title
Sec. 2: First Inventor to File
Sec. 3: Inventor's Oath or Declaration
Sec. 4: Damages
Sec. 5: Post-Grant Review Proceedings
Sec. 6: Patent Trial and Appeal Board
Sec. 7: Preissuance Submissions by Third Parties
Sec. 8: Venue
Sec. 9: Fee Setting Authority
Sec. 10: Supplemental Examination
Sec. 11: Residency of Federal Circuit Judges
Sec. 12: Micro Entity Defined
Sec. 13: Funding Agreements
Sec. 14: Tax Strategies Deemed Within the Prior Art
Sec. 15: Best Mode Requirement
Sec. 16: Technical Amendments
Sec. 17: Effective Date; Rule of Construction
What will be the fate of S.23? If history is any indication, the reform measure may go the way of previous legislative attempts and end up scuttled before it gets much traction. But at least this Congress is starting the process early. Below is a list of previous Congressional attempts to reform the Patent Act and the fate of each bill.
111th Congress: S. 515 (Patent Reform Act of 2009: Dead)
111th Congress: S. 610 (Patent Reform Act of 2009: Dead)
111th Congress: H.R. 1260 (Patent Reform Act of 2009: Dead)
110th Congress: S. 1145 (Patent Reform Act of 2007: Dead)
110th Congress: S. 3600 (Patent Reform Act of 2008: Dead)
110th Congress: H.R. 1908 (Patent Reform Act of 2007: Passed House)
109th Congress: S. 3818 (Patent Reform Act of 2006: Dead)
As it has in the past, the Biotechnology Industry Organization (BIO) came out in support of S. 23, with BIO President and CEO Jim Greenwood noting the legislation's benefits to bio: "Innovation in biotechnology is based upon the strong and predictable protection of intellectual property provided by our nation’s patent system. Without strong and predictable patent protection, investors would shy away from investing hundreds of millions of dollars, over a decade or more, in high-risk biotechnology companies, and will simply put their money into projects or products that are less risky or offer a more immediate return but are of less value to society." Other stakeholders, as they have in the past, will undoubtedly step forward for or against the legislation.
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