Patent Reform Legislation to Live or Die Based on Senate Majority

The prospects for patent reform legislation in Congress will depend on the ability of Republicans to take back the Senate in mid-term elections in 18 days.
For several years, intellectual property advocates have been pushing for patent reform legislation to curb the alarming number of lawsuits brought by patent trolls. However, in late May this push was stopped dead in its tracks as Senate Democrats abruptly pulled legislation from the Senate Judiciary committee. Reports suggest that Senator Harry Reid (D-NV) 
killed the bill under pressure from trial lawyers who have contributed over $4 million to the majority leader since 2009.
Patent trolls are entities that acquire patents with the intent of filing infringement suits on inventors with the aim of receiving a settlement from the threat of costly litigation. Since 2010, patent trolls have made an average of $8.5 million on infringement cases compared to $2.5 million for practicing entities. Studies have found that this threat of costly litigation serves as a major drag on innovative practices, which in turn threatens jobs and economic growth.  Furthermore, numerous reports, including the annual International Property Rights Index produced by the Property Rights Alliance, have proven a link between protection for innovation and economic prosperity.  

The recent Alice Corp. v CLS Bank federal court decision earlier this year has had some effect in stemming the tide of patent trolls, by providing more additional protections to software patent holders and raising the bar for trolls. While the Alice decision has been successful in fighting patent trolls, more needs to be done to protect innovative enterprise.

Advocates hope that they will be able to push through reform in 2015; however this will almost certainly rest on which party controls the Senate. 

The election of a Republican Senate would see patent reform placed on the agenda, with current minority whip Senator John Cornyn (R-TX) recently expressing support for reform. However it seems less likely a Democratic majority would do the same given their actions to kill reform several months ago.

Last week, President Obama again made comments suggesting his support for reform. Despite making similar comments in the past, the President has done little to push for patent reform in the real world. Even if his commitment is genuine this time, it is unlikely that he will get the approval he needs from trial lawyers and Harry Reid.