Law experts call for flexible patent legislation

Members of a House Judiciary subcommittee probed experts on patent law Thursday as the House prepares to introduce its own version of patent reform legislation.

Earlier this week the Senate passed a bill aimed at finally overhauling a patent system which hasn't been significantly changed in almost 60 years. House Judiciary Chairman Lamar Smith, R-Texas, has said he anticipates a House bill sometime this month, and at Thursday's hearing, Rep. Bob Goodlatte, R-Va., shared his confidence.

"I'm optimistic that we can get a bipartisan, bicameral bill on the president's desk in the near future," said Goodlatte, chairman of the Subcommittee on Intellectual Property, Competition, and the Internet.

The subcommittee called three witnesses to testify on recent judicial rulings on patent cases. Some observers have said parts of the current patent legislation are unnecessary because of case law developed by courts, and at least some witnesses agreed.

"It is clear that the courts are addressing these issues, using the tools and the guidance that Congress has provided in the patent statute in order to adapt the law to the current needs and concerns of innovators," wrote Dan Burk, a law professor at the University of California, Irvine, in his written testimony. "The process of adoption takes some time, but the necessary tools to make the needed changes are already provided in the statute as it exists today." In fact, he said, often only the courts are dynamic enough to respond to changes in innovation and the economy.

Dennis Crouch, an associate law professor at the University of Missouri, said patent law is much less detailed than copyright law, and therefore gives courts more leeway for interpretation. And, he added, "I certainly don't see that as a problem."

But does that amount to judicial activism? "By no means," Burk said. "If anything, it appears the courts may sometimes be overly cautious in exercising the latitude that they have been granted under the current statute."

Some confusion has arisen in the past because courts haven't followed Congress's direction, said Andrew Pincus, a partner at the Washington, D.C.-based firm Mayer Brown, who testified on behalf of the Business Software Alliance. But despite past "imbalances" in the law, he said, "as a result of this judicial activity, the legal standards governing patent litigation are in a much better state than they were when this committee first led the charge on patent reform."

While courts have established some precedent on issues such as venue, damages and willfulness, the witnesses stressed that only congressional action can decide many of the patent system's issues, including funding for the Patent and Trademark Office and moving to a first-to-file system.