At the end of a day-long hearing of the U.S. House Judiciary Committee, during which multiple recesses were taken, a marked-up version of proposed bill H.R. 9, the Innovation Act, was approved for debate on the floor of the House of Representatives by a 24-8 vote. A number of motions to amend the bill, many of which were withdrawn, indicated that members of Congress are not yet satisfied with the language of the bill.
Dissent among members of Congress on the nature of the Innovation Act was evident from the opening remarks of the committee’s two ranking members. Congressman Bob Goodlatte (R-VA), the House Judiciary Committee Chairman and the Innovation Act’s major sponsor, stated that the Innovation Act would “ensure that the patent system lives up to its constitutional underpinnings” while targeting the abusive patent litigation which has been central to the debate on patent trolls. The ranking Democratic member of the committee, Congressman John Conyers (D-MI), said the bill was overly broad and yet it didn’t adequately address issues significant to this debate, including abusive demand letters and the ending of fee diversions from the U.S. Patent and Trademark Office’s budget.
Congressman Conyers (D-MI) spent the day arguing for pro-innovator improvements to the bill.
A manager’s amendment was proposed by Goodlatte which included language on stays of action against covered customers as well as venue restrictions. Other provisions of the manager’s amendment focused on joinder to ensure fee recovery, stay of discovery and prohibitions on double patenting. In a few areas of the bill, especially sections on stay of customer suits and attorney’s fees, the manager’s amendment changes the language of the Innovation Act to bring it closer into line with the Senate’s PATENT Act. The amendment found support among committee members including Congressman Darrell Issa (R-CA) and Congressman Jerrold Nadler (D-NY). Nadler in particular mentioned that the manager’s amendment addresses alleged abuses of the inter partes review system. Conyers, however, continued his opposition, citing among other concerns the fact that the IPR language in the amendment did not go far enough to address the parts of the process that are harming the biopharmaceutical industry.
An amendment brought forth by Congressman Jason Chaffetz (R-UT) showed that there are still big interests at the table that are trying to shoehorn their views on patent reform into the Innovation Act. Chaffetz argued that his amendment would make retain the nature of both IPR and post-grant proceedings for patent review, both of which he felt were threatened by the recently introduced manager’s amendment. The amendment, however, would have struck the entirety of Section 9 of the bill, which includes a host of technical corrections to the Leahy-Smith America Invents Act. Both Conyers and Goodlatte opposed the amendment, Goodlatte specifically noting that the Chaffetz amendment would strike provisions that have been the result of years of discussions. Chaffetz cited support for his amendment from corporate stalwarts in the semiconductor and tech world, including Apple, Micron, Applied Materials and Dell. This statement seemed reminiscent of comment by Senator Sheldon Whitehouse (D-RI), again at the June 4th PATENT Act hearing, where he noted that whenever Congress attempts to handle an issue like abusive demand letters, larger industry players are very interested in having an outsized say in the patent reform debate.
Other amendments were withdrawn by committee members with assurances by committee chairman Goodlatte that more work would be done to refine the Innovation Act as it heads to the floor of the House. Congresswoman Zoe Lofgren (D-CA) withdrew an amendment on pleading requirements after Goodlatte said that he was “willing to entertain improvements to this provision of the bill.” Congresswoman Sheila Jackson Lee (D-TX) withdrew an amendment on reasonable specificity in claims, which she portrayed as a measure reducing costs for small businesses, but Goodlatte noted how this amendment stood in direct opposition to what other committee members are seeking in regards to claim structure. It seems fairly clear that consensus on what the Innovation Act is supposed to accomplish has not yet been reached among the members of the committee who approved it for debate on the House floor.