Patent Litigation Reform Inches Forward (Yet Again)

As reported in the New York Times and Wall Street Journal, the Senate has joined the House of Representatives in introducing legislation aimed at reforming patent litigation procedures to address the patent troll problem. The bill, introduced in a rare show of bi–partisanship by Senators Cornyn, (R., Tex.), Grassley (R., Iowa), Leahy (D., Vt.), and Schumer (D., N.Y.), parallels the House proposal in ways that suggest ultimate passage might be a possibility, if not a likelihood.

The Senate bill (the PATENT Act) (1) places limits on patent infringement demand letters sent before litigation; (2) requires disclosure of the ultimate owner of a litigated patent; (3) requires that plaintiffs state their claims in their initial complaints in greater detail than currently required; (4) places limits on discovery from accused infringers in the early stages of litigation; and (5) increases the courts’ authority to award attorneys’ fees to losing litigants in patent cases.

The Senate provision on attorneys’ fees is softer than the House version. Where the House bill would require the loser to pay unless the court concluded otherwise, the Senate bill authorizes a fee award to an accused infringer if the court determines that the suit was unreasonable.

Common–sense patent reform is, it would appear, that much closer to reality.