Jimm Phillips

The Senate Judiciary Committee appeared to still be in negotiations Friday afternoon on compromise language for the Patent Transparency and Improvements Act (S-1720), parties told us. The committee had delayed a markup of the bill until Tuesday afternoon to allow additional work on the compromise, which will be introduced in the form of a manager’s amendment. Chairman Patrick Leahy, D-Vt., had said during a committee meeting Thursday that those negotiations were in the “final stages” (CD April 4 p9). The committee appeared to still be “hashing out the fee-shifting language, the joinder provision that attaches to the fee-shifting, and the discovery reforms,” said Daniel Nazer, an Electronic Frontier Foundation staff attorney who focuses on patent revamp efforts. The committee has promised to release the language of the manager’s amendment and any other amendments up for debate well before the markup, meaning there’s a tight deadline for negotiations to conclude, Nazer said. A Monday posting of the manager’s amendment would be particularly problematic because it would be difficult for stakeholders to “digest a 60-page bill in a day,” said an industry lobbyist. The markup is set to begin at 2:30 p.m. in 106 Dirksen.

The U.S. International Trade Commission ruled Thursday on a patent case with potential implications for the agency’s handling of electronic transmissions. But patent lawyers told us Friday that an initial notice on the ruling indicates there’s been no change in ITC precedent. The ITC ruled that invisible teeth-straightening system manufacturer ClearCorrect violated five of Invisalign manufacturer Align Technology’s patents under Section 337 of the Tariff Act, but didn’t infringe on two others (http://1.usa.gov/1jLh5Ie). ClearCorrect said it plans to appeal.

The Senate Judiciary Committee postponed consideration of the Patent Transparency and Improvements Act (S-1720) again Thursday, as expected (CD April 2 p14), but plans to convene Tuesday afternoon to mark up the bill. Chairman Patrick Leahy, D-Vt., said during a committee meeting that he’s confident “we are in the final stages of hammering out” a compromise version of the bill. Senate Judiciary plans to post the compromise bill -- to come in the form of a manager’s amendment -- and any additional amendments in advance of Tuesday’s markup. Some stakeholders told us the manager’s amendment could go public as soon as Friday, though Leahy said during the meeting that he believed the committee would continue to “work in good faith throughout the weekend” to reach a compromise.

The leaders of NTIA and the Internet Corporation for Assigned Names and Numbers (ICANN) told the House Communications Subcommittee Wednesday that the best way to sustain multistakeholder Internet governance is to allow the two entities proceed with transitioning oversight of the Internet Assigned Numbers Authority (IANA). NTIA, which currently oversees ICANN’s administration of IANA and domain name system functions, said last month it plans to transition its current oversight role to a global multistakeholder group once ICANN and others develop an acceptable governance plan. Several House Republicans and FCC Commissioner Mike O'Rielly, also a Republican, have criticized the NTIA plans, with O'Rielly saying Tuesday that it “raises some serious concerns that must be addressed prior to moving forward” (CD April 2 p8).

The U.S. Patent and Trademark Office’s creation and implementation of first-inventor-to-file (FITF) rules under the America Invents Act (AIA) continues to be a learning experience for the agency a year after AIA’s FITF provisions went into effect, PTO officials said during an agency event Tuesday. The FITF provisions in AIA, which went into effect March 16, 2013, were meant to redefine prior art in order to simplify the U.S. patent system and harmonize it with systems in other countries, said PTO Deputy Director Michelle Lee. PTO used the FITF language in AIA and stakeholder input to create the final rules it issued last year, she said.

Patent industry observers said Monday they believe the Supreme Court will create a workable, narrowly tailored rule to determine when software is patentable via its upcoming ruling in Alice Corp. v. CLS Bank International. The high court heard oral argument Monday, in which Alice argued its claim to four patents on financial software is valid under Section 101 of the Patent Act. Alice is one of several patent cases the court has heard during its current term -- advocates expect two cases the court heard in February involving health and fitness industry patents are likely to determine when a court can use fee-shifting to award attorney’s fees to the party that wins a case. The court’s rulings in Alice and other cases are likely to help clarify some of the confusion over patent cases, but they remain part of the larger patent revamp landscape, which includes a push from the White House and work in Congress, the Patent and Trademark Office and the FTC, advocates said.

The Senate Judiciary Committee deferred action Thursday on the Patent Transparency and Improvements Act (S-1720), with Chairman Patrick Leahy, D-Vt., moving to table consideration until next Thursday. The committee had not reached consensus on a manager’s amendment that would constitute a compromise version of the bill, he said. Stakeholders had anticipated Wednesday that the committee would delay consideration of S-1720 in part because, while a deal appeared to be close to completion, negotiations were still ongoing (CD March 27 p13). Senators from both parties said during the committee meeting that they were optimistic they were close to a deal on S-1720, thus far the Senate’s marquee legislation aimed at combating patent abuse.

Sprint Chairman Masayoshi Son told the Competitive Carriers Association trade show Thursday small carriers “need to fight back” against the Verizon Wireless-AT&T wireless carrier “duopoly” that’s “taking over our country.” The top two U.S. wireless carriers had 73 percent of postpaid wireless subscribers in 2013, up from 56 percent five years earlier, according to statistics Son cited from the GSM Association. During the same period, the two carriers’ combined share of enterprise customers rose to 80 percent from 51 percent in 2008, Son said. “What happens in the next five years?” he said. Son has previously used similar arguments in arguing for further consolidation in the U.S. wireless industry, but did not address Sprint’s rumored interest in buying No. 4 U.S. carrier T-Mobile US in his remarks Thursday.

Action from Congress on liability protections and improvements to federal hiring will aid the Department of Homeland Security in its work to strengthen public-private partnerships on cybersecurity, said Phyllis Schneck, DHS deputy undersecretary-cybersecurity, during a Senate Homeland Security Committee hearing Wednesday. The hearing focused on how DHS, the National Institute of Standards and Technology and critical infrastructure entities have been implementing President Barack Obama’s 2013 cybersecurity executive order. NIST released its “Version 1.0” Cybersecurity Framework in mid-February, while DHS began to encourage voluntary industry use of the framework at the same time through its Critical Infrastructure Cyber Community program (CD Feb 13 p5).

The Senate Judiciary Committee appeared close to reaching agreement Wednesday on language for a compromise version of the Patent Transparency and Improvements Act (S-1720), but had not yet circulated the compromise language, stakeholders told us in interviews. The committee is scheduled to begin considering S-1720 Thursday at an executive business meeting, but under committee rules all new bills up for consideration are automatically rescheduled for markup at least a week after first coming before the committee, putting a markup of S-1720 no earlier than April 3. A committee spokeswoman would not confirm where negotiations stand on S-1720, but said in an email that Leahy and committee staff “continue working with other offices on a bipartisan agreement.”