White House on Patent Trolls: It’s Your Turn, Congress

Administration officials reiterated Thursday that they can’t win the war on predatory patent-litigation practices if they don’t get any backup from Capitol Hill.

Lynley Kirkness dressed as an elf admires the five-metre-high replica of the cave troll on the eve of the official opening of The Lord of the Rings Motion Picture Trilogy - The Exhibition at the Powerhouse Museum in Sydney, 22 December 2004, which is its only display venue in Australia.
National Journal
Dustin Volz
Feb. 21, 2014, midnight

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.”

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