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
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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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