White House Rolls Out Three New Weapons to Slay Patent Trolls

While Congress stays mum, the White House is moving ahead with executive actions intended to improve patent quality.

A man works on the exhibit 'Cave Troll' 18 January 2007 in preparation of the show 'The Lord of the Rings' at the filmpark Babelsberg in Potsdam, eastern Germany.
National Journal
Dustin Volz
Feb. 20, 2014, 7:10 a.m.

The White House un­veiled a trio of ex­ec­ut­ive ac­tions Thursday in­ten­ded to help in­vent­ors fight off ab­users of pat­ent law.

The three or­ders aim to change the work­ings of the Pat­ent and Trade­mark Of­fice, the fed­er­al body that judges pat­ent ap­plic­a­tions.

Crit­ics ar­gue the of­fice needs to be re­formed to pro­tect in­nov­at­ors from pat­ent “trolls,” the term used to de­scribe com­pan­ies that pur­chase cheap pat­ents and use them for profit by fil­ing ques­tion­able in­fringe­ment law­suits — hop­ing to lever­age those suits in­to luc­rat­ive set­tle­ments.

In its or­der Thursday, the White House launched a joint ini­ti­at­ive between the pat­ent of­fice and private in­dus­tries aimed at im­prove ac­cess­ib­il­ity and search­ab­il­ity of “pri­or art” hold­ings.

Pri­or art refers to tech­no­logy or in­ven­tions that ex­is­ted be­fore a pat­ent claim was filed. Com­pan­ies are sup­posed to list rel­ev­ant pri­or art they have know­ledge of when fil­ing a new pat­ent, a design that is bur­den­some and not al­ways in their fin­an­cial in­terests, as — if the tech­no­logy or one sim­il­ar to it does ex­ist — it weak­ens the com­pany’s ap­plic­a­tion.

So the bur­den of­ten falls to the pat­ent ex­am­iners, and the cur­rent stand­ard largely re­lies on pat­ent ex­am­iners to be aware of all rel­ev­ant pri­or art when con­sid­er­ing wheth­er to grant a pat­ent.

That stand­ard is “un­real­ist­ic,” said Robin Feld­man, a pat­ent-law pro­fess­or at the Uni­versity of Cali­for­nia. “Bet­ter pri­or-art ac­cess for the PTO would be a step to­ward bet­ter pat­ent qual­ity,” said Feld­man. “A step to­ward great­er third-party in­volve­ment is ul­ti­mately a good thing.”

By cre­at­ing a more ac­cess­ible sys­tem for search­ing pri­or art, the ex­ec­ut­ive or­der is aimed at help­ing ex­am­iners eval­u­ate if a pat­ent claim rep­res­ents a truly ori­gin­al in­nov­a­tion.

In a Thursday blog post, Mi­crosoft said it was “ready to part­ner with oth­ers to” help the pat­ent of­fice “per­form its del­ic­ate and in­creas­ingly tech­no­lo­gic­ally com­plex role.” The com­pany launched a pri­or art ini­ti­at­ive last year that aims to up­load mil­lions of doc­u­ments that could be con­sidered pri­or art and make them pub­lic. The site is cur­rently in a live-beta phase but will be equipped with ad­di­tion­al fea­tures and func­tion­al­it­ies “in the com­ing months.”

The oth­er two ex­ec­ut­ive or­ders al­low en­gin­eers and tech­no­lo­gists to provide more tech­nic­al train­ing to pat­ent ex­am­iners and es­tab­lish a full-time of­fi­cial at the pat­ent of­fice to provide free as­sist­ance to in­vent­ors need­ing leg­al rep­res­ent­a­tion.

Along­side the new re­forms, the White House on Thursday said it plans to re­lease pro­gress re­ports on a set of ex­ec­ut­ive ac­tions ini­ti­ated last June that were also in­ten­ded to in­crease pat­ent trans­par­ency, make pat­ent claims more clear, and pro­tect “con­sumers and main-street re­tail­ers” from ab­use.

As an ad­ded step to bet­ter pro­tect in­vent­ors from trolls, the ad­min­is­tra­tion is also launch­ing an on­line tool kit that will in­clude “links to ser­vices and web­sites that can help con­sumers un­der­stand the risks and be­ne­fits of lit­ig­a­tion or set­tle­ment, and pick their best course of ac­tion.”

“In­creas­ing avail­able in­form­a­tion and tech­nic­al train­ing for pat­ent ex­am­iners, as these ex­ec­ut­ive ac­tions do, can only help,” said Mat­thew Levy, pat­ent coun­sel with the Com­puter and Com­mu­nic­a­tion In­dustry As­so­ci­ation, which has vo­cally sup­por­ted pat­ent-lit­ig­a­tion re­form.

Still, ad­voc­ates of pat­ent re­form, in­clud­ing the White House, main­tain that le­gis­lat­ive ac­tion is ne­ces­sary. Pres­id­ent Obama called for Con­gress to help re­form the lit­ig­a­tion sys­tem dur­ing his State of the Uni­on ad­dress last month, but things have quieted in the Sen­ate since the House passed the In­nov­a­tion Act with sweep­ing bi­par­tis­an sup­port last year.

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