“It is clear that if this discriminatory treatment of a select category of patents opposed by special interests in the United States were to be made a permanent feature of U.S. law, it would create a harmful precedent for our trading partners to enact exceptions in their laws to protect special interests in their countries,” wrote a host of companies, including 3M, IBM, Eli Lilly and Microsoft, in a letter to the leadership of the House and Senate Judiciary committees last month.
Critics of the Schumer and Issa-Chu approach are less hostile toward a provision recently unveiled by House Judiciary Chairman Robert W. Goodlatte, R-Va., that would expand the CBM program to a lesser extent as part of broader draft legislation to attack patent trolls. Goodlatte’s approach would still require that any software patents challenged under the CBM program relate to financial services, but it would expand the types of patents that would qualify to include almost anything with a financial aspect, such as systems that disburse financial payments.
Goodlatte and the House are moving more quickly than the Senate, where stakeholders are waiting on Senate Judiciary Chairman Patrick J. Leahy, D-Vt., to release a draft bill.
Senate staff expect the process to be a close collaboration between the two chairmen, and they hope to iron out most of the negotiations before releasing a draft. The initial bill from Leahy is unlikely to incorporate anything regarding the CBM program, but the final product that reaches the floor could include language from Schumer or another bill that would expand the review process to cover most software patents.
Nevertheless, the old guard of large patent holders believes that endgame is far from a foregone conclusion, and it plans to lobby fiercely to forestall any changes. But the tech industry is unlikely to give up, especially with heavyweights such as Google and Apple pushing the issue. Expect the coming battle over software patents to meet or exceed even the most bitter court case.