Congress Set to Consider Leahy-Hatch, Kyl Patent Reform Bills

Congress is set to consider two newly introduced patent reform bills.

The Leahy-Hatch bill, also known as the Patent Reform Act of 2009, was introduced on March 3, 2009.  The full text of  S. 515, the  Leahy-Hatch bill is attached.

Following the introduction of the Leahy-Hatch bill, Senator Kyl introduced a second bill, S 610, which is also attached.

What is the key difference between the two bills?  Well, the primary difference between the two bills  is in how each bill would treat the calculation of damages in litigation.  The Leahy-Hatch bill contains controversial language, which is designed to make damage awards more predictable and less subject to judicial discretion.  In contrast, the controversial  language is absent in the Kyl bill.  While it's not clear at the moment which bill is more likely to be backed by Congress, the Kyl bill may have the edge, since the Leahy-Hatch damages language has been the source of so much controversy in past Congressional patent reform debates.

So, will this be the year that patent reform happens?  As I stated in the California Biotech Law Blog, passing patent reform this year is certainly within the realm of possibilities:

While on one hand it seems incredible to think that in the midst of such economic turmoil a patent reform bill could be voted into law, on the other hand, the truth of the matter is that the economic turmoil could provide just the right climate for patent reform to actually be enacted.   If you question that premise, just take a look around at the other legislation on the table right now--regardless of your political persuasion, I think many Americans would agree that legislation is on the table right now and is getting voted through Congress that would never in normal times get through so easily.

Moreover, I think most commentators would agree that the reason we have been at standstill on patent reform is in large part due to the vigorous lobbying efforts by both the tech and life sciences industries.  I think there is some question given the economy that either industry will have the same level of funds to spend on patent reform lobbying efforts right now.  Biotech companies are running out of money and in some cases filing for bankruptcy.  Tech companies are doing mass layoffs in an attempt to try to stay solvent.  And pharma companies are out looking for bargain basement deals to fund.  Which of these parties will be able to really invest in patent reform lobbying this year?  Your guess is as good as mine.

The Silicon Valley IP Licensing Law Blog will continue to follow this legislation as it moves through Congress, and will keep you posted on any new developments.

Prior blog postings by The Prinz Law Office on the patent reform debate:

Patent Reform Bill Stalled in Senate
Patent Reform Bill Passed in House
Kristie Prinz Interview with Dow Jones Marketwatch of Patent Holding Companies, Patent Reform
Biotech vs. High Tech: Opposing Views on Patent Reform
Industry Group Sends Letter to Congress on Patent Reform
Case for Patent Reform
Patent Reform Legislation