Hatch: "Sick and tired of non-innovators"
Indeed, Hatch, a longtime co-sponsor of patent reform bills with Leahy, voted against the bill, citing "watered down language" on inequitable conduct.
The provision can be used to invalidate a patent in cases where an applicant failed to declare all prior art. Many companies decline to declare any prior art for fear of invoking the provision, a factor that makes the job of the patent office more difficult.
"I'm sick and tired of non-innovators who over use inequitable conduct provisions and walk away as infringers," Hatch said. "Industry leaders tell me this [bill] does not accomplish its objectives," he added.
Kyl reiterated earlier comments that changes in post-grant review procedures would not be manageable by the patent office. Leahy said he agreed to meet with patent office representatives in the upcoming two-week Congressional break.
"I have a bunch of other amendments [because] clearly changes are needed for this to be successful on the [Senate] floor," Kyl said.
He cited problems with provisions including the gatekeeper language on damages, willful infringement and limits on venue, raising issues about whether the existing bill could pass the full Senate.
"The changes [the trio] agreed to have come together very quickly without an adequate understanding of their implications and nothing should prevent us from getting input from interested parties and the patent office where we really go back and forth and reach a pact," Kyl said.
Coburn offered an amendment allowing the patent office to keep for the next five years the revenue it generates from its fees. The office currently relies on the annual decision of a separate budget committee to keep all its funds.
Leahy tabled the bill. He said such an amendment would be more appropriate at the full Senate level.
Leahy clearly wanted to vote on the bill Thursday (April 2) to avoid letting the bill sit during a two-week recess that might have opened fissures in the fragile compromise. However, he faced some difficulties just getting enough senators in the committee room for the vote.
"I hope other senators might drop by," he said at one point with some heat. "Apparently two other members are able to find the committee room, and we will have a vote when they get here," he added.
Scheduling a vote on the Senate floor will be an even more complex process. It typically requires Senate leaders have confidence the bill has the 60 votes needed to pass, something that could be difficult for such a complex piece of legislation.
In the last Congress, a patent reform bill, HR 1908 was passed in the House of Representatives in September 2007. However its companion bill--S.1145--failed to make it to the Senate floor for a vote in 2008.