Encouraging Progress On Patent Reform
WASHINGTON (Thursday, March 19, 2009) – Senate
Judiciary Committee Chairman Patrick Leahy (D-Vt.) Thursday said that
advocates for patent reform are making progress in considering
legislation that would bring the first significant reforms to the
nation’s patent system in more than 50 years. On March 3, Leahy
and former Committee Chairman Orrin Hatch (R-Utah) introduced the Patent
Reform Act of 2009.
Leahy and Hatch have introduced patent reform
legislation in each of the last three Congresses. On March 10, the
Judiciary Committee held a hearing to examine needed reforms to the
patent system. At a business meeting Thursday, Leahy said that the
bill sponsors had held productive meetings on the legislation with a
number of offices. The Patent Reform Act is cosponsored by
Committee members Chuck Schumer (D-N.Y.) and Sheldon Whitehouse
(D-R.I.), and Senators Mike Crapo (R-Idaho), Kirsten Gillibrand
(D-N.Y.), and James Risch (R-Idaho).
“The hearing last week demonstrated that there is wide
consensus among participants in the patent system, academics, and
Senators on this Committee that patent reform is necessary,” said Leahy
on Thursday. “It should also be apparent, at least in my view,
that the time for posturing has ended, and the time for reaching
agreement has arrived.”
The Patent Reform Act of 2009 was scheduled to be
considered by the Judiciary Committee during an executive business
meeting Thursday. As are allowed under the Committee’s rules, the
measure was held over for one week. The Committee is expected to
debate the legislation in executive session next Thursday, March 26.
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Statement of Senator Patrick Leahy
(D-Vt.),
Chairman, Senate Judiciary
Committee,
Opening Statement
Executive Business Meeting
March 19, 2009
This is the third consecutive Congress in which
Senator Hatch and I have introduced bipartisan patent reform
legislation. I thank Senators Schumer and Whitehouse for
cosponsoring this legislation. The hearing we held last week was
the eighth this Committee has held since 2005 on patent reform issues.
Last Congress, the bill was the subject of consideration and amendments
over four weeks of mark-up sessions in this Committee, and even after
the Committee voted 13 to 5 to report the bill favorably, we continued
to hold numerous meetings, briefings, and roundtables.
While we have been deliberating, innovation and
American inventors have been suffering from an outdated patent system
and counterproductive litigation process. I hope that the time has
finally come for Congress to act.
The hearing last week demonstrated that there is wide
consensus among participants in the patent system, academics, and
Senators on this Committee that patent reform is necessary. It
should also be apparent, at least in my view, that the time for
posturing has ended, and the time for reaching agreement has arrived.
The most difficult issue remains the calculation of
damages. Now, I have a great deal of respect for the jury system.
I think the Supreme Court got it right earlier this month in upholding a
Vermont jury’s award of damages in the Wyeth decision.
But in some areas of the law, as good as juries are,
they would benefit from more guidance. In my view, just dropping
15 complicated factors into the laps of jurors and asking them to make a
complex decision has become unhealthy for the system. A University
of Houston law professor suggested at recent FTC hearings, that:
“[This may be] why we are getting erratic results. It certainly
does not lend itself to . . . predictable results.” Similarly, a
Minnesota law professor testified that the factors “can be so easily
manipulated . . . to reach any outcome.”
Judge Edward Becker was a brilliant judge, a wonderful
man, and a friend to many on this Committee. Before he became the
Chief Judge for the Third Circuit, in his days as a district court
judge, he had occasion to write about the importance of the jury’s role,
and its limits. It was in the television antitrust cases, but the
issue that he discussed in that complex economic context also resonates
in the patent context we discuss today. He upheld the right to a
jury trial when some on the Third Circuit were ready to conclude that
some matters are simply too complicated for a jury, and should be
decided by the judge. I respect our jury system and the Seventh
Amendment guarantee of jury trials. But I believe that in many
patent infringement cases, the courts can be much more helpful to a lay
jury, and they should be. After all, it was the courts that over
time developed the 15 factors that may be relevant to determining a
patent infringement award. It makes sense for the judge to help
the jury by identifying the factors that will lead to an appropriate
damages award.
Senator Specter asked the witnesses at our hearing
last week for language to describe what the test should be. Many
of them were close to using the same words in response. We are
looking for a way to get this right, to legislate responsibly.
We are having very productive meetings with a number
of offices. The way to a resolution is not to stall this process
now, but to amplify our efforts. I appreciate those who are
working cooperatively and collaboratively as we devise language that
will allow us to respond to the growing consensus that we must modernize
our patent laws. I want our language to allow innovators in all
sectors of our economy to flourish.
Before we take up the Patent Reform Act, we have as
unfinished business before the Committee today the President’s
nomination of Dawn Johnsen to be the Assistant Attorney General to head
the Office of Legal Counsel. After turning to the Ranking Member
for his opening remarks, I intend to recognize Senator Feinstein, who
chaired the hearing on that nomination, and then proceed with our debate
and our Committee vote on that nomination.
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