Maine patent troll bill headed for Senate vote

By Jessica M. Karmasek | Mar 12, 2014

PORTLAND, Maine (Legal Newsline) -- A bill that would make patent trolling more difficult in Maine is headed to the state Senate floor.

This week, members of a joint standing judiciary committee -- three senators and 10 representatives -- voted in favor of the bill, Legislative Document 1660.

The committee voted Thursday; however, some members were absent so their votes weren't recorded with the committee clerk until later. The final vote was noted Tuesday.

Nine of the committee's members, a majority, voted for a version of LD 1660 that includes an amendment exempting pharmaceutical companies from the legislation. Four members voted for a version of the bill not including the amendment.

Amy Cookson, deputy communications director for Senate Democrats, said Wednesday the bill now will be sent to the Senate and the Senate chair of the judiciary committee will have the option of moving either version of the bill.

The bill then will make its way to the Senate floor for a vote, she said.

Under LD 1660, any company or person can file a lawsuit in superior court against someone who has made a bad faith assertion of patent infringement against them.

The court may award equitable relief, damages, costs and fees, including "reasonable" attorneys fees, and punitive damages equal to $50,000 or three times the total damages, costs and fees -- whichever is greater.

Also under the proposed bill, the attorney general may bring an action for a bad faith assertion in violation of the state's Unfair Trade Practices Act.

Sen. Anne Haskell, a Democrat and sponsor of the bill, said last week she wasn't too keen on excluding pharmaceutical companies from the measure.

"I'd prefer not to have that amendment on there," she said Thursday, when the committee was still considering the amendment.

However, Haskell said she would agree to a "limited version" of the amendment if it would help the bill pass.

The senator explained that the pharmaceutical companies were "quite concerned" about generic manufacturers.

"They want to be able to push back on generics," she said.

Some pharmaceutical trade groups, including the Pharmaceutical Research and Manufacturers of America, or PhRMA, already have expressed their concerns with federal legislation aimed at curbing patent trolls.

When the U.S. House of Representatives voted in favor of the U.S. Rep. Bob Goodlatte's Innovation Act in December, PhRMA argued the legislation would undermine the ability of patent holders to enforce their rights by filing or litigating a patent lawsuit to completion.

"This could impose substantial burdens on the ability to enforce legitimate patents effectively and efficiently, potentially decreasing the value of patents and weakening incentives for innovation," the group said in a statement.

John A. Murphy III, assistant general counsel for PhRMA, said Wednesday state regulatory changes are even more problematic.

They have the potential to upset a "rigorous" federal process currently in place, he said.

"State-led enactment of requirements concerning patents could result in a patchwork of inconsistent state regulations governing the assertion of patent rights," Murphy said in a statement. "Such a monumental shift away from the unified federal oversight of the patent system could prove challenging for multiple innovation-based industries, including but not limited to biopharmaceutical companies.

"Instead, PhRMA supports efforts by state attorneys general to protect state residents and businesses from false and misleading assertions of patent infringement through the traditional consumer protection mechanisms already currently available."

From Legal Newsline: Reach Jessica Karmasek by email at patents@legalnewsline.com.

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