As Congress becomes further embroiled in election-year politics, especially a high-stakes standoff between the White House and the Senate Judiciary Committee over the President’s nomination to the Supreme Court, it appears ever more likely that 114th Congress will end in December 2016 without passing comprehensive patent legislation.  With the House and Senate patent bills on legislative life support, proponents have not given up on passing some patent bill this year.  On Thursday, Senators Jeff Flake (R-Ariz.), Cory Gardener (R-Colo.), and Mike Lee (R-Utah) introduced S. 2733, the Venue Equity and Non-Uniformity Elimination Act (“VENUE Act”), which would restrict where patent owners can file lawsuits to enforce their patents against infringers.

Just five years after Congress passed the most comprehensive patent legislation in half a century, the Leahy-Smith America Invents Act (“AIA”), supporters of legislation argue that further dramatic changes to the patent litigation system are necessary to curb abusive patent enforcement practices.  They say that substantially heightened pleading requirements, discovery limits, litigation stays, mandatory fee shifting, and now venue reform—are necessary to curb  lawsuits filed in plaintiff-friendly judicial districts, such as the Eastern District of Texas.

Patent owners, licensors, and other stakeholders—including individual inventors, research universities, R&D companies in technology and the life sciences, and venture capitalists— disagree that broad litigation reform is the answer.  They point out that neither chamber’s comprehensive bill, H.R. 9 (the “Innovation Act”) and S. 1137 (the “PATENT Act”), would curb bad faith demand letters and “reverse trolling,” such as abuses of post-grant review processes at the U.S. Patent and Trademark Office (USPTO) established by the AIA.  These stakeholders support targeted legislation narrowly tailored to stop these abuses, and other measures to reduce litigation by improving patent quality, such as fully funding the Patent Office.

Legislation is pending in both the House and Senate that would resolve these abuses and strengthen the patent system, without broad changes to litigation procedures.  In the House, the Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade has passed the TROL Act (H.R. 2045), which would clarify the Federal Trade Commission’s power to pursue senders of fraudulent and abusive patent demand letters and set a uniform national standard for bad faith demand letters.

In the Senate, the bipartisan bill S.632, the STRONG Patents Act, targets abusive demand letters, prevents abuse of post-grant challenges, and improves patent quality.  First, the STRONG Patents Act would—like the TROL Act—clarify the FTC’s authority over bad faith patent demand letters.  Second, it would restore balance to post-grant proceedings at the USPTO, including harmonizing claim construction standards between post-grant challenges and district courts, permitting patent owners to amend claims, presuming the validity of challenged patents, and requiring patent challengers to have standing.  Finally, the STRONG Patents Act would limit fee diversion from the USPTO and ensure that the agency has the resources it needs to issue high-quality patents.

Although H.R. 9  and S. 1137, were reported out of committee last summer, both have aroused considerable opposition from patent-dependent stakeholders,  and neither has advanced to a floor vote amid the controversy.

The future of the VENUE Act—and patent legislation generally—is still uncertain, but historically the Senate Judiciary Committee has not been receptive to changes to patent venue rules.  Regardless of whether the Judiciary Committee or the full Senate takes up the legislation, the VENUE Act is likely to be patent litigation reformers’ last stand until at least the next Congress.

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Photo of Holly Fechner Holly Fechner

Holly Fechner advises clients on complex public policy matters that combine legal and political opportunities and risks. She leads teams that represent companies, entities, and organizations in significant policy and regulatory matters before Congress and the Executive Branch.

She is a co-chair of…

Holly Fechner advises clients on complex public policy matters that combine legal and political opportunities and risks. She leads teams that represent companies, entities, and organizations in significant policy and regulatory matters before Congress and the Executive Branch.

She is a co-chair of the Covington’s Technology Industry Group and a member of the Covington Political Action Committee board of directors.

Holly works with clients to:

  • Develop compelling public policy strategies
  • Research law and draft legislation and policy
  • Draft testimony, comments, fact sheets, letters and other documents
  • Advocate before Congress and the Executive Branch
  • Form and manage coalitions
  • Develop communications strategies

She is the Executive Director of Invent Together and a visiting lecturer at the Harvard Kennedy School of Government. She serves on the board of directors of the American Constitution Society.

Holly served as Policy Director for Senator Edward M. Kennedy (D-MA) and Chief Labor and Pensions Counsel for the Senate Health, Education, Labor & Pensions Committee.

She received The American Lawyer, “Dealmaker of the Year” award. in 2019. The Hill named her a “Top Lobbyist” from 2013 to the present, and she has been ranked by Chambers USA – America’s Leading Business Lawyers from 2012 to the present.

Photo of Matthew Shapanka Matthew Shapanka

Matthew Shapanka draws on more than 15 years of experience from Capitol Hill, private practice, state government, and political campaigns to counsel clients significant legislative, regulatory, and enforcement matters. He develops and executes complex, multifaceted public policy initiatives for clients seeking actions by…

Matthew Shapanka draws on more than 15 years of experience from Capitol Hill, private practice, state government, and political campaigns to counsel clients significant legislative, regulatory, and enforcement matters. He develops and executes complex, multifaceted public policy initiatives for clients seeking actions by Congress, state legislatures, and federal and state government agencies, many with significant legal and political opportunities and risks. Matt also leads the firm’s state policy practice, advising clients on complex multistate legislative and regulatory policy matters and managing state advocacy efforts.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration, where he advised Chairwoman Amy Klobuchar (D-MN) on all legal, policy, and oversight matters before the Committee, including federal election and campaign finance law, Federal Election Commission nominations, and oversight of legislative branch agencies, U.S. Capitol security, and Senate rules and regulations. Most significantly, Matt led the Committee’s staff work on the Electoral Count Reform Act – a landmark bipartisan law enacted in 2022 to update the procedures for certifying and counting votes in presidential elections —and the Committee’s joint (with the Homeland Security Committee) bipartisan investigation into the security planning and response to the January 6, 2021 attack on the Capitol.

Both in Congress and at Covington, Matt has prepared dozens of corporate and nonprofit executives, academics, government officials, and presidential nominees for testimony at congressional committee hearings and depositions. He is also an experienced legislative drafter who has composed dozens of bills introduced in Congress and state legislatures, including several that have been enacted into law across multiple policy areas.

In addition to his policy work, Matt advises and represents clients on the full range of political law compliance and enforcement matters involving federal election, campaign finance, lobbying, and government ethics laws, the Securities and Exchange Commission’s “Pay-to-Play” rule, and the election and political laws of states and municipalities across the country.

Before law school, Matt worked in the administration of former Governor Deval Patrick (D-MA) as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on policy, communications, and compliance matters for federal economic recovery funding awarded to the state. He has also worked for federal, state, and local political candidates in Massachusetts and New Hampshire.