clo·ture. noun /ˈklōCHər/ (in a legislative assembly) A procedure for ending a debate and taking a vote; a cloture motion.
(*update: The Senate voted 93-5 to end debate on a motion to proceed with the bill, limiting debate to 30 hours.)
The Leahy-Smith America Invents Act, H.R. 1249 passed the House in June by 304-117, in June. Now, Senate Majority Leader Harry Reid (D-Nev.) has filed for cloture on the patent reform bill, setting up a vote today.
The Senate is scheduled to vote on the motion to end debate on the America Invents Act of 2011 and then vote on the bill itself. The bill to be voted on by the Senate is word for word from HR 1249, the patent reform measure passed by the House of Representatives on June 23.
By adopting the House version of patent reform, the Senate loses on some provisions of the bill.
The patent bill passed by the Senate in March ended the practice of fee diversion — diverting USPTO revenues to other parts of the government, and allowed the USPTO to keep the fees collected. It is estimated that Congress has diverted about $1 billion in fees since 1992.
The House version creates a sequestered account for USPTO revenue in excess of appropriated funds, for use exclusively by the USPTO. As pointed out by Patrick Anderson of Gametime IP, the excess funds may be used by the USPTO if, and only if, provided in appropriations Acts by Congress. That meaning there is no guarantee how much in excess funds will be available, if any amount at all. To access that money, the USPTO must submit requests to the House Appropriations Committee. However, the fund give the USPTO a 15% fee surcharge and the authority to set rates going forward.
Earlier this year, the Senate voted 95-5 to approve legislation guaranteeing funds collected by the US Patent and Trademark Office (USPTO) would be used to pay for patent examination and related expenses (S.23 Section 20). That is, providing that “amounts deposited into the Fund under paragraph (2) shall be available, without fiscal year limitation.” (emphasis added)
In contrast, the House of Representatives amended this such that any user fees that exceed the USPTO’s allocated funding would be placed into a special account, Congress could then appropriate to the USPTO. (H.R. 1249 Section 22), if it felt moved to do so. It remains to be seen if the Senate decides to press for the end to fee diversion.
Supporters of the bill point out that there has been no significant fee diversion in the past decade.
A petition for a post-grant review must be filed no later than 9 months after the grant of the patent or issuance of a reissue patent (correction via Prof. John Villasenor, UCLA). Post-grant proceedings would be conducted by a new Patent Trial and Appeal Board, with the current Board of Patent Appeals and Interferences abolished.
The House bill also creates a new inter partes review allowing third-party challenges to patents after they have been granted, limited to prior art consisting of patents and printed publications. Inter partes review may only be sought after a post-grant review, or after the one-year time period expires for requesting third-party review.
Money, Money, Money
According to the Congressional Budget Office, the House bill is projected to cost $446 million between FY 2011–2016, but will ultimately cut $717 million from future budget deficits, mostly since USPTO fees will be reclassified from offsets to discretionary spending to offsetting receipts.
At 5:00 PM, the Senate will proceed to an Executive Session to consider Cal. #109 (Bernice Bouie Donald to be United States Circuit Judge for the 6th Circuit). There will be 30 minutes of debate followed by a vote on the nomination. Immediately following the judicial nomination vote, the Senate will proceed to a cloture vote on the Motion to Proceed to H.R. 1249 (Patent Reform Bill).
I’m sure you’ll be glued to C-SPAN.