Light at the end of the tunnel for patent reform, or an oncoming train?

[Commentary] After nearly three years of patent reform discussions, there appears to be some light at the end of the tunnel. On June 4, the Senate Judiciary Committee plans to mark up their Protecting American Talent and Entrepreneurship Act (PATENT) Act, which at present is a package of patent litigation reform measures aimed at making the business of frivolous litigation less attractive to those who like to game the system for financial gain. The bill, as initially presented, garnered a good deal of support from traditional reform supporters, including small businesses, hotels, banks, retailers and the tech industry. Even universities, who dislike the House's Innovation Act, have expressed tepid support for the PATENT Act. But what if that light is not the other side of the tunnel, but an oncoming train?

Last-minute negotiations have unlocked a Pandora's box of possible amendments or revisions to the bill, nearly all of which could diminish (or even extinguish) the enthusiasm of current supporters and endanger the bill's chances to move forward. And almost all of them are focused on changing procedures established just a few years ago in the last round of patent reform. The America Invents Act (AIA) was signed into law in September 2011. Included in the AIA was a section that created three new ways to challenge issued patents before the US Patent and Trademark Office's (USPTO) Patent Trial and Appeal Board, known as post-grant review, inter-partes review and the transitional covered business method review.

[Stoll is a partner and co-chair of the intellectual property group at Drinker Biddle & Reath and a former commissioner for patents at the United States Patent and Trademark Office]