PATENTS - House Patent Reform Bill

I suspect most patent practitioners are against the Goodlatte proposal. That was the feeling at a recent U. Penn. Law Symposium, according to a handful of experienced practitioners. If that is the sentiment across the patent bar, Chief Justice Roberts' remark from several years ago comes to mind. He was told the patent bar supported a certain client's position, and he responded: "But which way does that cut?"

From Dennis Crouch: 

The House of Representatives has already passed a companion bill that would (a) dramatically raise the pleading standards for filing a patent infringement action; (b) require that courts award the prevailing party attorney fees and expenses except for certain cases; (c) allow defendants to force joinder of those with a direct financial interest in the patents at issue as a mechanism for both ensuring that the prevailing party fees are paid and that the financial interests behind patent litigation become public; (d) limit discovery until after claim construction; (e) require more particular pre-filing notice for willful infringement; (f) boost transparency of patent ownership requirements; (g) limiting PGR estoppel only to actually raised issues and eliminating the “reasonably could have raised” provision; (h) etc.

(a) Does not seem to be a big deal. It is good practice for plaintiffs for have their ducks in a row, in anticipation of various jurisdictions' local patent rules. 

(b) Seems to have exceptions which swallow the rule. 

(c) Removes some litigation over "who" questions, but not all. There may still be room for litigation over what is to be gained by various parties. 

As Professor Crouch blogged here: 

Under 299(d), interested parties include assignees, anyone with a right to sue, anyone with a right to sublicense, and anyone with a direct financial interest in the patents. However, neither ordinary contingency fees attorneys nor equity owners of the patentee qualify for joinder despite their obvious financial interests.

(d) Courts should remain in control of discovery so they can tailor the needs of a David v. Goliath case differently from a David v. David, Goliath v. Goliath, or a Goliath v. David case. It is not clear that they will under the House bill.

(e) Offers a new statutory litigation risk which may  will create multiple billable events. 

(f) Good for patent notice, tangentially. Will cut down on hypocritical assertions. Also, will increase law firm billables (slightly).

(g) Will increase filings of PGR, which seem to be much cheaper than federal litigation. While it is way too early in the process for statistical assessments, I have heard commenters who typically represent defendants praise the resource.