Patent Legislation Introduced in Congress
Pending Patent legislation that has been recently introduced in the 113th Congress includes two notable bills: the “Innovation Protection Act” — HR 3349 (Conyers), and the “Innovation Act” — HR 3309 (Goodlatte). The Innovation Protection Act is intended to fully fund the USPTO, establishing an “Enterprise Fund” that would let the USPTO keep the funds it collects. The Innovation Act is aimed at curtailing “abusive” patent litigation, i.e., by “patent trolls”.
The Innovation Protection Act’s “Enterprise Fund” is to be a special fund of the US Treasury that would allow the Patent and Trademark Office direct access to the fees it collects, without requiring a specific congressional appropriation. This, of course, would mean that the Office would remain up and running, at least for a while, in the event Congress fails to agree to a budget or continuing resolution. Whether this would be constitutional or not has yet to be tested (see U.S. Const., Art. I, Sec. 9, Clause 9: “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law”). Similar provisions for other fee-collecting Federal agencies, such as the Park Service, might also be useful, but have yet to be proposed.
The Innovation Act aims to reduce patent litigation abuses by entities that own patent rights but do not practice the patent, i.e., do not make, sell or import the product. Much more detail would have to be included in the Complaint and early pleadings, such as mandatory discovery, that is filed by
the patent owner. Attorney fees and similar costs would shift onto the losing party unless the court deems that such an award would be unjust.
Both the Innovation Protection Act and the Innovation Act will need to wend their way through the committee process, where (inevitably) the bills will be significantly amended, if they survive.