Patent reform clears key hurdle in the Senate

The Senate Judiciary Committee on Thursday sent a bill to the floor that aims to crack down on so-called patent trolls.

The committee voted to advance the bill 16-4, clearing a hurdle that proved impassable in the last Congress when senators clashed over the details of the legislation.

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A number of senators backed the new bill with the qualification that it is not finished, and many promised to push for amendments on the Senate floor. Other members like Sen. Ted CruzRafael (Ted) Edward CruzFBI investigating alleged assault on Fort Bliss soldier at Afghan refugee camp The Memo: Biden's immigration problems reach crescendo in Del Rio Matthew McConaughey on potential political run: 'I'm measuring it' MORE (R-Texas) voted against the bill but left open the possibility of supporting it on the floor. 

"I’d like to point out that, as this bill moves to the floor, there remain a few issues that need to be resolved," said Chairman Chuck GrassleyChuck GrassleyGrassley announces reelection bid The Hill's Morning Report - Presented by Alibaba - Democrats argue price before policy amid scramble Congress facing shutdown, debt crisis with no plan B MORE (R-Iowa). 

Sens. Cruz, David VitterDavid Bruce VitterBiden inaugural committee to refund former senator's donation due to foreign agent status Bottom line Lysol, Charmin keep new consumer brand group lobbyist busy during pandemic MORE (R-La.), Dick DurbinDick DurbinDemocrats urge Biden to go all in with agenda in limbo Schumer sets Monday showdown on debt ceiling-government funding bill Democrats surprised, caught off guard by 'framework' deal MORE (D-Ill.) and Chris CoonsChris Andrew CoonsDems punch back over GOP holdup of Biden SBA nominee Biden threatens more sanctions on Ethiopia, Eritrea over Tigray conflict Senate Democrats to Garland: 'It's time to end the federal death penalty' MORE (D-Del.) all voted against the bill. 

Technology companies and retailers have pushed hard for the past few years to get a bill passed to address what they see as the growing abuse of the legal system, with trolls buying up patents solely for the purpose of extracting financial settlements.

The bill approved Thursday includes a number of substantial additions to placate companies in the pharmaceutical and biotechnology industries. The underlying bill also contains a number of compromises compared to the House version, which is expected to be marked up in the near future.  

Lawmakers have engaged in a delicate dance to satisfy as many interests without blowing up the overall deal. From the start, lawmakers have said no industry will get everything it wants in the bill.

"We have gotten some flack from some of our allies in the tech community for making some of the changes from the universities, pharmaceuticals to the legal provisions in terms of who pays. But we're trying to seek balance here," said Sen. Charles SchumerChuck SchumerAnti-Trump Republicans on the line in 2022 too Democrats urge Biden to go all in with agenda in limbo Democrats press Schumer on removing Confederate statues from Capitol MORE (D-N.Y.), who helped negotiate the bill.

The legislation makes a number of changes to the patent litigation process, dealing with pleadings and discovery standards, fee shifting, demand letters, and rules allowing end users to delay infringement lawsuits while similar cases are litigated against the manufacturer of technology. Companies say all of those tools are being used to bully them into patent settlements.

Coons and Durbin are critical of the legislation, arguing the changes would make it harder for people to defend legitimate patents.

A half dozen amendments by Coons were handily voted down, which tracked closely with his alternate patent legislation introduced earlier this year. At one point during the markup, Sen. John CornynJohn CornynAbbott bows to Trump pressure on Texas election audit Senate panel advances antitrust bill that eyes Google, Facebook Democrats up ante in risky debt ceiling fight MORE (R-Texas), who helped negotiate the deal, accused Coons of "piecemeal trying to upset the delicate balance we are trying to achieve here."

One amendment sponsored by Sen. Dianne FeinsteinDianne Emiel FeinsteinFederal watchdog calls on Congress, Energy Dept. to overhaul nuclear waste storage process Senate advances Biden consumer bureau pick after panel logjam Republicans caught in California's recall trap MORE (D-Calif.) that was approved Thursday would bar demand letters from containing a specific monetary settlement request.  

"What I have seen is a shakedown. That's what these demand letters are," Feinstein said.

Recent debate has focused on additions to placate concerns from the the pharmaceutical and biotechnology industries about trial-like proceedings in the U.S. Patent and Trademark Office (PTO), which were set up after Congress last passed a patent bill in 2011.

Those proceedings at the PTO — known as post grant and inter partes reviews — were meant to offer a faster and cheaper way to challenge the validity of a patent.

Supporters say the proceedings are important to weed out weak or vague patents. But critics argue the system is skewed too far against patent holders, and succeeded in getting a whole new section added to the reform bill dealing with the issue.

Those changes at the PTO have been derided by the technology community as having the potential to "significantly weaken" the process. But at least one major patent trade group, United for Patent Reform, representing major tech companies and retailers, has said the change won't cause it to oppose the bill.

Lawmakers still have a number of issues to work out with the PTO provision, including one that would exclude certain Food and Drug Administration-approved drugs from the proceedings.

This story was updated a 1 p.m.