Since our last legislative update, two additional proposals have been introduced and the Obama administration has spoken on the subject of patent litigation reform. In addition, House Judiciary Committee Chairman Bob Goodlatte released an updated discussion draft of proposed reforms just yesterday. Among various items, the draft includes heightened pleading requirements for patent cases, a joinder provision to add an interested party to the case where the plaintiff has no substantial interest in the patent other than asserting it in litigation, fee shifting to prevailing parties unless the non-prevailing party’s position was substantially justified or special circumstances exist, a provision to limit pre-Markman discovery, real-party-in-interest disclosure requirements to both the courts and the PTO, and a customer stay provision. The draft also directs the Judicial Conference of the United States to develop rules and procedures to address asymmetries in discovery burdens and costs in patent cases. With respect to PTAB proceedings, the draft proposes removing the “reasonably could have raised” language from the estoppel provision for post-grant reviews (PGRs), requiring that the PTAB utilize the same standard used by district courts to construe patent claims, and expanding covered business method (CBM) patent reviews.
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