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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