'It’s the way our system is supposed to work,' Sen. Patrick Leahy said. | JAY WESTCOTT/POLITICO Senate approves patent reform bill

The Senate gave final approval to the first major overhaul of the nation’s patent law in more than a half century Thursday, sending the America Invents Act to President Barack Obama for his signature.

The legislation won overwhelming approval in an 89-9 vote.


“This bill is an opportunity to show the American people that Democrats and Republicans can come together to enact meaningful legislation for the American people,” said Sen. Patrick Leahy (D-Vt.). “The time to do that is now.”

The America Invents Act switches the U.S. patent system from a first-to-invent to a first-to-file nation. It also sets up a new regime to review patents and gives the U.S. Patent and Trademark Office more flexibility to set and spend fees paid for by inventors to get patents and businesses to register trademarks.

The bill also makes dozens of technical changes to the law that may or may not benefit particular interests including sections that make it more difficult to patent a “business method.” In addition, the measure expands the ability to introduce prior art in patent exams and bans patents on tax strategies.

Supporters of the act contend that reforming the patent system will unlock innovation and produce jobs in an economy that is increasingly driven by intellectual property. Currently, there is a backlog of about 700,000 patents waiting for examination, and the next cellphone, incandescent lamp or miracle drug could be hidden in that pile, supporters said.

“This bill is important for our economy. It’s important for job creation,” Leahy said. “It’s the way our system is supposed to work. I look forward to passing the bill and sending it directly to the president’s desk for his signature.”

Sen. Maria Cantwell (D-Wash.), however, doubted the bill would do much to create jobs.

“If this is a job creation bill, I’ve got news for my colleagues, in an innovation economy, it sides with the big corporations over the little guys,” she said.

The legislation has broad support from hundreds of companies including high-tech stalwarts like IBM, Microsoft, Apple, Google and Facebook. It also has broad support in the medical and manufacturing industries and from the United Steelworkers.

That broad range of support comes as the bill has migrated from its beginnings six years ago as a reform directed at solving litigation issues surrounding patents to one that is aimed more at the nuts and bolts of the patent system.

Approval of the bill — which Obama has indicated he will sign — did not come without a fight as lawmakers pushed for last-minute changes to the legislation.

Lawmakers sought last-minute changes in the bill to ensure the patent office has access to the fees it collects. Other measures tried to strip out sections that clear up ambiguities on the time a patent holder has to file for an extension and restrictions on when a business-method patent can be reviewed.

All three of the amendments were defeated because of the fear that even those tweaks could send the legislation back to the House where the bill may have died just short of the goal line.

“If we insist on ideological purity, it would sink years of work,” Leahy said.

Sen. Tom Coburn (R-Okla.) disagreed, arguing that the House was trying to push the Senate around. Coburn wanted to strengthen a section of the bill that attempts to allow the PTO to spend all the money it takes in.

While the Senate’s original legislation gave that power to the PTO, the House objected and it set up a separate account for the funds. If the PTO needs the money, it has to come back to Congress to get it.

Coburn contends that the House language is no compromise at all, and that senators needed to stand up for their provision.

“The way you beat a bully is you challenge a bully,” he said from the floor.

But Leahy said that kind of talk would carry little weight.

“No matter what we say about it, this is an amendment that can derail or even kill the bill,” he said. “There is no reason to believe the House position will change.”

In the end, the desire to win passage for the legislation won out.

“It’s now the law of the land,” Leahy said.

This article first appeared on POLITICO Pro at 6:27 p.m. on September 8, 2011.