Neil McCabe

Capitol Hill conservatives are wary of the House GOP leadership slipping in pro-Google language into the H.R. 3309, the “Innovation Act,” the patent law reform bill working its way through the lower chamber.

The legislation championed by Rep. Robert W. Goodlatte, the chairman of the House Judiciary Committee, Nov. 22 passed that panel with strong bipartisan support, 33 to 5, and it now heading to the Rules Committee and then the House Floor for a final up or down vote. Rules meets Dec. 3 to work on the bill with the amendment window closing the previous day.

As the manager of the bill, Goodlatte was instrumental in knocking back the effort of Google lobbyists, in league with “patent trolls,” those drive-by interests that clutter the system with nuisance suits over low-quality patents, to hijack Section 18 of the Innovation Act’s predecessor bill, the 2011 America Invents Act.

One of the significant changes in the AIA was to change the United States from a first-to-invent patent system to a first-to-file patent system. While by going to first-to-file, America joined the rest of the world, Congress responded to the concerns of Wall Street it would be swamped by lawsuits involving certain processes and procedures that since 1997 have been patentable.

Under AIA, all patents can be challenged in the nine-months after they are granted. Section 18 provides a special challenge process for the financial services industry that sunsets in 2020.

Google lobbyists slipped in language to the Innovation Act that would have expanded Section 18 to any product, service or enterprise involving data processing, read: anything and everything, and done away with the sunset.

The end effect would be to take a specific and transitional program and convert it into a permanent weapon for the search engine giant to push back on patent holders objecting to Google’s liberal use of their intellectual property. The most famous example of this is the vow by a dying Steve Jobs to spend down to zero Apple Computer’s $45 billion cash hoard to make right Google’s lifting of IP from the iPhone.

The expansion of Section 18 also creates a new administrative court system inside the Patent and Trademark Office, where the rules and procedures found in the federal court system may or may not apply at the discretion of PTO bureaucrats.

Working with Rep. Douglas A. Collins (R.-Ga.), Goodlatte kept the Section 18 changes out of the Innovation Act bill that was reported out of Judiciary using his privilege as the bill’s manager.

Neil McCabe

Neil W. McCabe is a journalist working in Washington. He was a senior reporter for the Human Events newspaper and for many years a reporter for The Pilot, Boston's Catholic paper. In 2009, he deployed to Iraq with the Army as a combat historian for 15 months.