Staffers Preview Congressional IP Agenda

Speaking at a BroadbandBreakfast.com event in Washington, Neil Quinter, chief counsel to Sen. Dianne Feinstein, D-Calif., said Congress will first take up performance rights legislation. Look for a bill to deal with the varying treatment of broadcast, satellite and Internet radio, he said. “Senator Feinstein wants to see a more level playing field, where everyone pays a comparable royalty fee,” Quinter said, calling the U.S. “an anomaly” among industrialized countries in not providing for performance royalties.

In the next 90 to 180 days Congress will take a look at whether the FCC overstepped its authority in its net neutrality order, as well as at performance rights, predicted Laurent Crenshaw, aide to Rep. Darrell Issa, R-Calif. Lawmakers will also look at the incentive auctions that the FCC is proposing for retrieving spectrum from its holders, he said. It’s questionable how well the current plan for auctions would work, because technology such as 4G wireless and 3D TV may not work with re-auctioned spectrum, he said. Congress will also take up the D-block, Crenshaw said. Issa’s House Oversight and Government Reform Committee will look at how to buy IT more efficiently, especially cloud computing and whether moving government data to private servers would save much money, he said. Issa recently met with Vice President Joe Biden on government IT reform and thinks it’s the top issue the administration and Oversight Committee can work on, Crenshaw said.

Longer term, Congress will probably seek a patent overhaul in steps, abandoning the comprehensive approach of last Congress, staffers said. The comprehensive approach failed for the last several congresses, Quinter said. A comprehensive bill would have to take up several intractable issues, he said, such as revamping damages. Large tech companies are in a standoff with the Senate, which will not budge from compromise language from the last Congress, Quinter said. Post-grant patent review issues also are politically difficult, he said. The user community wants to make attacking bad patents easier, but patents are the lifeblood of investors and universities, he said. What can be passed is patent fee change and additional resources for the Patent and Trademark Office, so it can reduce patent pendency times and improve patent quality, he said.

Issa believes patent overhaul is a must, Crenshaw said. Although there’s not enough agreement for a comprehensive bill, Congress can agree on aspects such as false markings -- manufacturers stamping a product as under patent when none has been issued. The number of false marking cases filed ballooned to 600 last year from 28 in 2009, Crenshaw said. This will be an issue “for years,” he said. Issa introduced a bill last Congress, HR-4954, that would but limit the persons who can sue for false markings to those suffering a competitive injury. Currently, anyone can sue. The bill faltered because it would cost $12 billion over 10 years. He worked with the Congressional Budget Office to rewrite the legislation to eliminate the financial impact scoring issue, said Crenshaw.

Patent reform lite will definitely be an issue for the 112th Congress, said Ryan Clough, aide to Rep. Zoe Lofgren, D-Calif. Giving the Patent and Trademark Office more resources to reduce backlog and improve patent quality may be more important than attempts at passing a comprehensive patent reform bill, he said. “If we do that, it would be measurable progress,” he said. “My boss doesn’t think these should be held up by other IP issues that are intractable.” There’s resistance in Congress to a comprehensive bill, because it could do more harm than good, he said.