The House Energy & Commerce Committee voted 30 to 22 to send the "patent troll" bill to the full House for a vote, but Republican bill backers signaled there was still work to do, and probably weeks or months before it was ready for the House floor.
The committee remains divided over the bill, but bill backer Rep. Michael Burgess (R-Tex.), chairman of the Commerce, Manufacturing and Trade subcommittee, which passed the bill along to the full committee last week, said his door was still open to discussions as the bill moves to the floor.
House E&C chairman Fred Upton (R-Mich.), seconded that, saying the bill needed work and would get it.
Both critics and supporters of the bill are looking to crack down on abuse of the patent process by companies doing mass mailings seeking settlement payments to avoid litigation, but they can’t agree on how best to do that.
The Targeting Rogue and Opaque Letters (TROL) Act would define what constitutes a false and deceptive patent assertion entity (PAE) letter subject to FTC enforcement under its Sec. 5 authority over unfair and deceptive practices.
Burgess has said the bill tackles a "costly scam," but in a way that protects the free speech rights related to patents, which are also a protected right.
Democrats have argued the bill is not tough enough on so-called trolls, and sought, for one thing, to strip the bill of its requirement of a demonstration that a letter was sent in bad faith. That is a key provision that Dems want gone and Republicans are strongly defending as necessary.
Burgess says that would grant the Federal Trade Commission and the states broad authority to determine the scope of patent law, which he said would invite constitutional challenges.
Defeated during the mark-up Wednesday were amendments that would have made it clear that the bill does not preempt common law, and one that would have eliminated the requirement that the Federal Trade Commission or state Attorneys General would have to establish that that a letter was in bad faith, a requirements Democrats said is too weak.
Withdrawn was an amendment that would have put the burden of proof on senders of patent assertion letters to show the infringement and justify a claim.
Various trade groups, including those representing realtors, restaurants, hotels and convenience stores, are opposed to the bill as currently constituted, which is one reason the bill will get more work before a House vote.
Democrats on the committee suggested that since both sides agreed the bill needs work, there was no need to pass it out of committee yet.