White House Continues Fight Against Patent Abuse

Earlier this month, the White House announced three new executive actions intended to “combat patent trolls and further strengthen our patent system and foster innovation.” From attorneys Jennifer Lane Spaith and David Tseng of Dorsey & Whitney:

“The first action aims to ‘crowdsource’ prior art by allowing ‘companies, experts, and the general public’ to help examiners and applicants in locating relevant prior art. The second action aims to expand technical training for patent examiners to become better technologists. The third action aims to introduce a pro bono system to assist inventors who lack legal representation.”

But the initiatives come up short on details and clarity:

“[W]hile the executive actions have the intention of increasing patent quality, they fail to answer difficult questions, such as what exactly makes one patent ‘higher-quality’ than other patents, or what makes an entity a ‘patent troll.’ The White House suggests in these actions that higher quality patents may follow when examiners are up to date on technology and when a greater breadth of prior art is on the record during examination. However, it is unclear whether more prior art will actually be submitted in a “crowd source” system, given that several mechanisms currently exist for the public to provide prior art for review by an Examiner. Moreover, it is unclear what effect, if any, these measures will have in terms of curbing PAE lawsuits. The executive actions do not target any particular type of entity, nor do they provide any restrictions on litigation activity.”

Long-term fight against “abusive litigation”

The latest moves by the White House are the continuation of a broader effort started last year, explains Wesley Helmholz of law firm Orrick, which includes:

  • Publishing a draft USPTO rule requiring patent owners to record and update ownership information;
  • Training examiners to rigorously examine “functional claims” for clarity and consistent enforcement;
  • Creating an online toolkit at www.uspto.gov/patentlitigation to help consumers better understand the patent system before entering into litigation or settlement;
  • Bringing academic experts to the PTO to develop and publicize more robust data and research on abusive litigation, while also engaging with “patent holders, researchers, advocates, and others” on high-tech patent issues;
  • Strengthening ITC exclusion order enforcement;
  • Sustaining a program to “create business incentives for using patented technology to address global humanitarian needs,” including, for example, efforts to reduce prices for HIV and malaria drugs.

The White House has made progress on one key initiative, writes Andrew Williams of MBHB:

“As for the executive initiatives, the most immediate was the launching of a new ‘on-line toolkit’ ‘[t]o help level the playing field and ensure individuals and businesses know their rights and are aware of available resources before entering into costly litigation or settlements . . . .’  On this site, there are icons for various resources directed to victims of abusive patent practices.  The first link provides information for what to do if “I’ve been sued,” which provides information about the patent litigation process.  […] Another link is directed to individuals that have received demand letters.”

The updates:

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