A process for creating a path forward on patent reform

Patent legislation only provides relief to those targeted by abusive threats of litigation if it reaches the president’s desk and becomes law.  And legislation will only become law if industry participants work together, and with Congress, to forge a consensus.  This was the lesson from the debate over the Leahy-Smith America Invents Act (AIA), and it is an important lesson for participants on all sides of the debate. 

The stakes are high for the U.S. economy any time changes to the patent laws are debated.  Virtually all industries rely on patented inventions, but they experience the patent system in a multitude of ways.  For some companies, their patented inventions are the core of their business; other companies rarely think about patent law until they receive a demand letter for infringing a patent. 

{mosads}The diversity of these experiences results in many stakeholders that have their own priorities and agenda, which rarely match the priorities of others.  Under the right circumstances, though, these differences can be resolved in effective and thoughtful legislation.

Sen. Pat Leahy (D-Vt.) often described the process that led to the enactment of the AIA, which spanned three Congresses, as the “gold standard” for legislating because it involved countless hearings, briefings, meetings, and negotiations with companies and industries that had very different perspectives.  The process took a bill that divided industry sectors and forged a compromise among reasonable companies from all sides of the debate on language that could become law. 

In the 109th Congress, the House had easily passed the Patent Reform Act of 2007, but, as with the Innovation Act in the 113th Congress, the industry dynamics made it impossible to get the bill to the Senate floor.  In the years that followed, Leahy and other key members led a process designed to allow all sides ample opportunity to explain how different proposals would affect their industry, even if the effects were unintended.  In turn, it gave both the industries involved and Congress a better appreciation of the different perspectives.    

That process created the industry and political dynamics needed to move the legislation through Congress.  And, in the end, it resulted in the most significant changes to the patent statute in more than a century, with near complete industry support.

Legislation is exceedingly difficult to enact, even in the best conditions.  Yet when Congress failed to enact immediately patent legislation last Congress, the media and many advocates expressed disbelief. That is unfair to the Members of Congress, who have been trying to address a set of complicated problems while balancing legitimate concerns about unintended consequences.

There is real reason, however, for optimism that the 114th Congress will enact legislation to address the misuse of patents, in a thoughtful, consensus-oriented manner.  The Members of Congress that are most directly involved in shaping the legislation are all experienced legislators who were key to the AIA.  They know how to run a successful process that advances an agenda to solve a problem.

Further, all industries have a reason to seek consensus.  No company or industry benefits from the practice of sending vague and unsubstantiated demand letters threatening litigation. It is particularly harmful to thousands of small businesses that do not have access to sophisticated legal or litigation advice. Frivolous litigation diverts the attention and resources of innovative companies.  It is indefensible based on any pro-innovation policy rationale and has seriously impaired the public’s perception of the entire patent system. This is bad for patent owners in every industry. 

The concern about abusive patent litigation is not new, but the 114^th Congress is well situated for success.  Industries have worked hard to resolve their differences over the last two years, and reasonable companies within each industry can be expected to continue to work constructively with Congress. 

The path to forging consensus and creating the right industry dynamics is not always fast or easy, but it is a necessary one for a patent bill to become a patent law.  Other paths produce only talking points, and lead us away from legislative change.

Cooper is of counsel at Covington & Burling and was previously Chief Intellectual Property and Antitrust Counsel to Senator Leahy on the Senate Judiciary Committee.  The views expressed are those of the author and do not necessarily reflect those of the firm or its clients.