I posted a few weeks ago on the introduction of H.R. 3309 by House Judiciary Chair Bob Goodlatte. The bill is currently set for a House floor vote on Thursday of this week, so if you have not already let your representative know your views, time is running out. If you don't know who your representative is, click here to search by zip.
This afternoon a letter from the Federal Circuit Bar Association to Rep. Goodlatte and ranking member John Conyers, Jr. crossed my virtual desk. In it, the FCBA expresses "serious concern" regarding the legislation's unintended consequences. It states:
- Abusive behavior, whether by "so-called 'patent trolls' or anyone else" is unacceptable.
- Effectively addressing abusive litigation conduct requires careful balance between the Congress and the judiciary.
"The United States courts are the leading examples of the application of the rule of law around the globe," the letter explains. "They have earned this reputation by reliably delivering justice and managing abuse in complex litigation fairly. The respect for their skills is well-earned. Their efforts are continuing." Accordingly, the letter states:
- The Judicial Conference should participate in the process, rather than "directing the courts to manage all patent infringement cases in one standardized way."
- Heightened pleadings standards might add the expense of a "more intense" early motions practice. (It can get more intense? Wow. Dispositive and other initial motion filings alone are up almost sevenfold in Marshall cases in the last couple of years already as a result of the last legislation).
- Adjusted attorneys fees provisions might spark "satellite fees litigation".
Instead, the letter recommends "targeted changes to FRCP 16(b-c) and 26 (b-d) requiring district judges to make specific findings in complex intellectual property cases" which it contends will be a "simpler alternative that is less disruptive". This appears to me to be a plea to move the bill's scheduling and discovery provisions from a proposed new 35 USC 299A, where they would join section 299 (better known as the patent cases remix of FRCP 20) to the Judicial Conference for consideration by the rulemaking arm of the Third Branch as potential amendments to FRCP 16 and 26.
The letter does endorse the legislation's requirement for the PTO to use the district court claims construction principles, rather than the MPE requirement that the PTO gives claims their "broadest reasonable interpretation consistent with the specification."
The letter concludes with a statement "strongly urg[ing] additional study" of these issues. As I said, a floor vote is scheduled for Thursday, so weigh in now...