Senator Leahy Kills Patent Reform (For Now)

ArsTechnica has a writeup with less . . . editorializing: http://arstechnica.com/tech-policy/2014/05/gridlock-strikes-....

("After nearly a year of work, there's 'no agreement on how to combat the scourge of patent trolls' without also harming other patent holders and universities, wrote Leahy. If stakeholders are able to get 'a more focused agreement,' Leahy said he'll bring it immediately to the committee's attention.")

("Early this morning, several groups opposing the bill denounced those provisions, promising they would be united in their opposition to any bill that included them. 'Many of the provisions would have the effect of treating every patent holder as a patent troll,' read a letter sent out by the Innovation Alliance, which was signed by the American Association of Universities and the biotechnology trade group BIO.")

It's widely believed that Sen. Leahy saw no pressing need to move forward. That's because two recent Supreme Court decisions might well have solved 80% of the problem, by giving federal trial judges much more latitude in awarding attorneys' fees to prevailing parties in "exceptional" patent-infringement cases, as long permitted by the patent statute itself.

Ah, but what does "exceptional" mean? In that regard, the Federal Circuit had been interpreting the word very strictly, in a manner that essentially tied the hands of trial judges. The Supreme Court cut the fetters. Here's a crucial quote from one of the Supreme Court opinions, excerpted by law professor Dennis Crouch [1] (extra paragraphing and bullets added by me):

<excerpt>

[A]n “exceptional” case is simply one that stands out from the others with respect to[:]

+ the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or

+ the unreasonable manner in which the case was litigated.

District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances [and without any] precise rule or formula for making these determinations.

</excerpt>

Importantly, the Court also held that on appeal, the trial judge's determination of the exceptional-case issue is reviewable only for "abuse of discretion." That is, the appeals court is not permitted to substitute its judgment for that of the trial judge, just because the appellate judges might have decided the case the other way, unless the trial judge's action was clearly unreasonable.

[1] http://patentlyo.com/patent/2014/04/discretion-attorney-liti...

Senator Leahy also introduced both COICA and PIPA to the Senate. I always brace for something I don't agree with when his name comes up.