This Week in Tech: Senate to mark up ‘patent troll’ bill

The Senate Judiciary Committee is set to mark up its highly anticipated patent reform bill this week.

The committee is scheduled to consider legislation Tuesday from Chairman Patrick Leahy (D-Vt.) and Sen. Mike Lee (R-Utah) that takes aim at “patent trolls,” companies that profit by bringing and threatening to bring patent infringement lawsuits, many of which are meritless.

Late last year, the House passed a bill to curb patent trolls from House Judiciary Chairman Bob Goodlatte (R-Va.).

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While the initial bill from Leahy and Lee largely focused on increasing transparency around patent infringement lawsuits and threats of lawsuits, Leahy has worked with other members of the committee to incorporate more contentious provisions over the past few months.

Specifically, Leahy has worked with Sen. John Cornyn (R-Texas) to include “fee-shifting,” or a provision that would require the loser of a patent infringement lawsuit to pay the winner’s legal fees.

Fee-shifting advocates say the measure will keep patent trolls from bringing frivolous suits in the hopes of getting defendants to settle, but critics worry it could keep legitimate patent holders from bringing infringement lawsuits out of fear that they’ll lose.

Leahy has also been working with Sen. Orrin Hatch (R-Utah) on a measure that would require a company filing an infringement lawsuit to put up a bond for the defendant’s legal fees. That measure is aimed at shell companies that file patent infringement lawsuits with hidden financial backing.

During a committee meeting Thursday, Leahy said he was “in the final stages of hammering out” a compromise on these and other issues, to be presented as a manager’s amendment before Tuesday’s markup. He said that he hopes “we can nail down these remaining issues in the next day.”

On Monday, tech companies and trade groups will make eleventh-hour efforts to advocate for their preferred patent reform measures.

The Main Street Patent Coalition, which has strongly supported a sweeping overhaul to the patent litigation system, is holding an event on Capitol Hill to talk about Congress’s legislation. That group is made up of vocal patent reform advocates, including the Application Developers Alliance, the National Retail Federation, the National Restaurant Association and the American Hotel and Lodging Association.

IBM, which supports patent litigation reform but has lobbied against efforts to weaken software patent protections, is flying in representatives to discuss with congressional offices the issues affecting the tech sector, including patent reform. IBM Vice President for Technology Policy Tim Sheehy said the company’s representatives would be meeting with staffers of lawmakers in both chambers and parties, including in leadership offices. In addition to other tech issues — such as cloud computing, big data and trade issues — the company will discuss those parts of patent litigation reform that are still in flux, Sheehy said. “There’s a number of issues on the bill that are still sort of being sorted out,” he said.

Critics of Leahy’s bill have worried that, in trying to combat the trolls, some measures may place extra burden on legitimate companies, labs and other outfits with patents.

“They’re overly broad,” said Laurie Self, an intellectual property expert at Qualcomm. “They sweep too broad of a net, not only prescribing additional requirements that would add transparency to a pleading or create more skin in the game for some of these hedge funds that are now backing patent assertion activity, but they go so much further than that in creating requirements that are excessively burdensome.”

The Senate panel won’t be the only committee looking at patent issues.

Also on Tuesday, the House Energy and Commerce Committee is holding a hearing on the letters people send to declare that a patent license is being violated. Current law does not require the letters specifically identify which patent is being violated, a feature that supporters of reform say allows trolls to send vague and harassing letters far and wide.

Attorney General Eric Holder is scheduled to testify before the House Judiciary Committee for an oversight hearing on Tuesday morning.

On Wednesday, the Senate Commerce Committee is marking up more than a dozen bills, two of which affect the tech sector.

The Federal Communications Commission Consolidated Reporting Act is a counterpart to legislation that passed the House this year, which would limit the number of reports the commission submits to Congress. Also before the panel is the Driver Privacy Act, from Sens. Amy Klobuchar (D-Minn.) and John Hoeven (R-N.D.). The bill would prevent the government from accessing information stored on cars’ data recorders.

That same day, the Senate Judiciary Committee will probe the proposed $45 billion merger between Time Warner Cable and Comcast. Comcast Executive Vice President David Cohen will testify.

Lawmakers in the House will continue their pushback against the Obama administration’s decision to hand over control of the system behind domain names online. The House Judiciary Committee hearing follows a similar session last week by the Energy and Commerce Committee.

The National Association of Broadcasters’ weeklong trade show is taking place in Las Vegas. Federal Communications Commission (FCC) Chairman Tom Wheeler is delivering the keynote address Tuesday morning. His speech comes just a week after the FCC voted to crack down on broadcasters’ coordination, a move  heavily opposed by the industry and Republicans on the commission.

The Internet Innovation Alliance is hosting two former lawmakers to talk about the evolution of the communications industry and how Congress should respond. The session is scheduled for Monday morning on Capitol Hill.

The Computer and Communications Industry Association’s annual Washington conference will take place on Wednesday. A host of lawmakers, administration officials and regulators will deliver remarks throughout the day.