The White House unveiled a package of executive actions Thursday designed to limit the potential for abuses of the patent system, but it chose to leverage the attention to again demand action on the issue from the quiet halls of Congress.
In doing so, administration officials also made clear that the ball remains squarely in the Senate’s court, and that the upper chamber must forge its own path on how to best fight “patent trolls,” or companies that buy up cheap patents and use them for profit by filing questionable infringement lawsuits against others.
“This is an area where you can see a sweet spot for bipartisan compromise,” said Gene Sperling, director of the president’s National Economic Council. “We’re not here to negotiate where that sweet spot is, but there is one and people should be able to find it.”
Commerce Secretary Penny Pritzker was more blunt: “We need Congress to step up at once,” she said. She praised the House for passing the Innovation Act, an omnibus stab at litigation reform, in December with sweeping bipartisan support before again declaring that “we need the Senate to act as well.”
The three new executive actions announced Thursday all involve improving the workings of the Patent and Trademark Office, the federal body responsible for judging patent filings. Each was met warmly by reform advocates, who deemed them a good-faith strike against the problem of low quality and overly broad patents.
But only so much can be done if Congress doesn’t send a bill to the president’s desk, said Morgan Reed, executive director of the App Association. “It’s in the Senate’s shoebox, so to speak, to move the ball forward [and] get us improved legislation.”
The Senate’s challenge is not one of simple party politics — it’s much more difficult. There are at least three reform provisions that are still causing negotiators ulcers, and stakeholders don’t fall neatly on any one side.
Still, there is cause for hope. Earlier this month, reform crusaders were buoyed by news that Sens. Chuck Schumer and Orrin Hatch were working on a compromise that would bundle two of their pet issues — expansion of a patent quality review program and a requirement that plaintiffs place a bond ensuring they pay up if they lose an infringement case, respectively — together in a package deal.
After publicly discussing the orders Thursday afternoon, the administration convened a roundtable discussion with about 25 key stakeholders. Led by Michelle Lee, the acting head of the patent office, the meeting ran long and had people genuinely mulling over how to reach consensus in the Senate Judiciary Committee, according to those who attended.
“It’s the first time I’ve seen all the sides get in one room and talk,” said attendee Matthew Levy, patent counsel with the Computer and Communication Industry Association. “Everybody showed a real willingness to talk and express their concerns and where they were willing to bend and where they couldn’t.”
“There was a real spirit of trying to communicate and at least work toward a compromise.”