Bills: HR 1908, S 1145

Outlook: The House is expected to pass legislation that would overhaul the nation’s patent laws early in the fall, but the Senate may have more difficulty with a companion measure.

Synopsis: In July, the Judiciary committees in both chambers approved the most dramatic changes to the nation’s patent laws in more than half a century. Those votes were the culmination of a bicameral, bipartisan push by a group of lawmakers including Sens. Patrick J. Leahy, D-Vt., and Orrin G. Hatch, R-Utah, and Reps. Howard L. Berman, D-Calif., and Lamar Smith, R-Texas.

The four lawmakers, who have pressed for patent overhaul for years, view this year as their best and perhaps only chance to end a logjam that pitted the biotechnology and pharmaceutical industries against technology firms. Those industries have very different timelines for their products’ shelf lives and thus different needs from the patent system.

Although the legislation has united lawmakers who are often ideological foes, it still faces significant opposition from a coalition of manufacturers, a few large research universities and the biotechnology industry.

Republican Jon Kyl of Arizona emerged as the leading opponent on the Senate Judiciary Committee, although Democrat Dianne Feinstein of California has also indicated that she is uneasy about the bill. Their biggest concerns are over provisions that would expand the ability to challenge patents after they are granted and that would apportion damages according to a patent’s contribution to the overall value of a product.

Critics say apportionment language would make it difficult to determine damages and would probably result in lower royalty rates for their patents. They also say that adding a new review procedure after a patent is granted would open patent holders to constant challenges. The House Judiciary panel opted to remove the provision and instead bolster the current evaluation procedure.

Opponents are counting on Senate allies to use procedural delays that would require a greater commitment of floor time than Democratic leaders will want to make this fall. Leahy, who chairs the Judiciary Committee and is the measure’s chief Senate backer, has said he believes there is only a narrow window of opportunity before election-year politics complicate passage.

Legislative Action:

House Judiciary Committee approved HR 1908 by voice vote July 18.

Senate Judiciary Committee approved S 1145, 13-5, on July 19.

Related Stories: House, Senate committee approval, CQ Weekly, p. 2204.