Congress focuses on abusive patent litigation

Congress introduced its most comprehensive bill to address "abusive" patent litigation in May of this session. Rep. Bob Goodlatte (R-VA) released a Discussion Draft that furthers Congress' focus on reducing perceived abusive patent litigation by "patent trolls" and NPEs that the America Invents Act (AIA) did not remedy. (Notably, the AIA requires a plaintiff asserting patent infringement to file suit against each defendant separately, but many believe that this requirement has been ineffective since filing fees are marginal).

Rep. Goodlatte collaborated with his counterpart in the Senate, Sen. Leahy (D-VT), to release the draft, which makes changes to the federal court system, USPTO, and AIA. Like other pending legislation, the discussion draft promotes cost shifting of attorney's fees to the prevailing party, disclosing the real party in interest in litigation and when sending demand letters, heightened pleading standards for patent infringement, staying litigation against end-users while the suit against the manufacturer proceeds, and identifying core discovery/discovery fee shifting. Unlike other current legislation, this bill further proposes changing post-grant review and inter partes review procedures, creating bankruptcy protection for licensees, codifying the doctrine of double patenting, and repealing 35 U.S.C. § 145 (which allows a patent applicant to appeal its patent rejection to district court).

As Rep. Goodlatte is the Chairman of the U.S. House Judiciary Committee and Sen. Leahy plans to release a corresponding draft, comments from this bill have a higher chance of producing real and significant results.

Read the full text of the Discussion Draft here. The seven bills currently in committee relating to NPE litigation are the SHIELD Act (H.R. 845), the Patent Quality Improvement Act (S. 866), the End Anonymous Patents Act (H.R. 2024), the Patent Abuse Reduction Act (S. 1013), the Patent Litigation and Innovation Act of 2013 (H.R. 2639), and the STOP Act (H.R. 2766).