Markup is now tentatively scheduled for Tuesday April 8. Senator Leahy indicated that the opposing sides were beginning to come close to a final bill. And that Senators should work over the weekend and post their proposed amendments online prior to the markup hearing. This will enable other Senators, and presumably the public, to review them carefully.
Fee shifting provision looks increasingly likely
Senator Leahy acknowledged that tort reform is not the kind of thing he typically goes in for. But went on to squarely take on the arguments coming from the trial bar and its representatives. Specifically:
Patents are clearly different from torts. Among other things, they are in the Constitution. Patent holders enjoy a government created monopoly. It's part of our special system under the Constitution to spur innovation. We can and should be able to agree to reforms in the patent context, without it creating precedent in other contexts because it is beyond clear the patent system is being abused and distorted by what are known as patent trolls.
Holding backers of judgement-proof shell companies accountable proving tricky
Senator Leahy said that crafting a mechanism to hold the backers of unreasonable litigation accountable was proving to be complex. Such a provision is crucial to the success of a fee-shifting measure. Senator Leahy mentioned that that revolves around work Senator Hatch is doing. Senator Hatch has previously proposed a bonding provision. And Senator Cornyn has proposed enabling the courts to reach to the parties with an interest in the litigation to ensure that when fees are shifted, they are collected. Time is needed to get the language right.
What kind of fee-shifting
The comments of the various Senators seems to indicate that the fight has shifted from whether fee-shifting will be included, to how it is going to be accomplished. Strong reform proponents are looking for a robust fee-shifting provision. While those who want to limit reform to the most egregious abuses of the system may be pushing to keep fee-shifting as narrow and toothless as possible.
Amendments to be posted on the Judiciary Committee website
We'll be keeping an eye on the committee's website and will report as Senators post their amendments over the coming days.