IBM, Microsoft, and Friends Renew Fight Against Patent-Troll Measure

The war over how to best exterminate patent trolls is reawakening from a brief cease-fire after President Obama called for reform in his State of the Union address.

A sign reading 'patent' has been put on a basket full of tomatoes during a protes staged by Greenpeace activists against food patents in front of the patent office in Munich, southern Germany, on July 20, 2010.
National Journal
Dustin Volz
Add to Briefcase
See more stories about...
Dustin Volz
Jan. 30, 2014, 6:29 a.m.

A power­ful co­ali­tion of large tech firms and oth­er busi­ness stake­hold­ers are rising up once again in op­pos­i­tion to a con­ten­tious pat­ent-re­form pro­vi­sion, as the Sen­ate weighs a path for­ward on le­gis­la­tion to slay so-called pat­ent trolls.

BSA | The Soft­ware Al­li­ance and over a hun­dred oth­er groups sent a let­ter to lead­er­ship of the Sen­ate Ju­di­ciary Com­mit­tee on Thursday warn­ing that ex­pan­sion of a pat­ent-re­view pro­gram housed at the Pat­ent and Trade­mark Of­fice will “hurt Amer­ica’s in­nov­at­ors — both small and large — and weak­en Amer­ica’s com­pet­it­ive ad­vant­age around the world, at a time when we can least af­ford it.”

The missive is en­dorsed by sev­er­al large tech firms, in­clud­ing IBM, Mi­crosoft, and Qual­comm, and it ar­rives a day be­fore Sen­ate Ju­di­ciary staffers are to sit down with key stake­hold­ers for a brief­ing on the meas­ure and oth­er pat­ent qual­ity is­sues, the third of four such edu­ca­tion­al meet­ings that have been sched­uled. Oth­er sig­nat­or­ies in­clude groups rep­res­ent­ing Amer­ic­an uni­versit­ies, tele­com­mu­nic­a­tions and phar­ma­ceut­ic­al com­pan­ies, and fin­an­cial ser­vices.

The pro­vi­sion, known to pat­ent wonks as “covered busi­ness meth­od” re­view, would ex­pand the pat­ent of­fice’s abil­ity to re­ject cer­tain in­fringe­ment claims made on low-qual­ity pat­ents. Cur­rently only fin­an­cial ser­vices pat­ents that are not tech­no­lo­gic­al in nature are eli­gible for such re­view, a mech­an­ism that was ad­op­ted with the pas­sage of the 2011 Amer­ica In­vents Act.

Many sup­port­ers of the re­view meth­od ex­pan­sion view it as the Ex­calibur ne­ces­sary to win the war against pat­ent trolls, the term du jour giv­en to com­pan­ies that pur­chase cheap pat­ents and use them for profit by fil­ing ques­tion­able in­fringe­ment law­suits, of­ten against small soft­ware star­tups that struggle to af­ford leg­al rep­res­ent­a­tion.

But BSA and oth­ers con­tend that al­low­ing the pat­ent of­fice to dis­card more pat­ents con­sidered poor in qual­ity over­cor­rects a sys­tem en­shrined in the Con­sti­tu­tion that has been the envy of the rest of the world for 200 years. Ex­pand­ing the re­view “would be to turn ill-ad­visedly and ir­re­voc­ably in a new dir­ec­tion — dis­crim­in­at­ing against an en­tire class of tech­no­logy in­nov­a­tion,” the groups write in their op­pos­i­tion let­ter.

Parts of the let­ter are nearly identic­al to one sent to the House Ju­di­ciary Com­mit­tee in Septem­ber, which led to the re­view ex­pan­sion’s even­tu­al re­mov­al by Chair­man Bob Good­latte, a Vir­gin­ia Re­pub­lic­an, in a man­ager’s amend­ment dur­ing the markup pro­cess. Good­latte ori­gin­ally favored the ex­pan­sion, but de­term­ined to get his In­nov­a­tion Act passed in 2013 and avoid a messy fight, he left the meas­ure on the cut­ting-room floor dur­ing com­mit­tee markup.

Good­latte quickly muscled his ed­ited In­nov­a­tion Act through the House, earn­ing a sweep­ing 325-91 vic­tory with strong sup­port from both parties. The om­ni­bus bill would re­quire plaintiffs to be more spe­cif­ic in pat­ent law­suits, in­crease trans­par­ency of pat­ent own­er­ship, re­duce the costs of dis­cov­ery and pro­tect end users, such as re­tail­ers or cof­fee shops. It ad­di­tion­ally makes it easi­er for those who suc­cess­fully de­fend them­selves against pat­ent trolls to re­cov­er leg­al costs, a pro­cess known as fee-shift­ing.

The let­ter touts its vic­tory in killing re­view meth­od ex­pan­ison in the House, not­ing that “the pro­vi­sion was re­moved [from the In­nov­a­tion Act] be­cause it had be­come clear that main­tain­ing the meas­ure was cre­at­ing a road­b­lock to passing any le­gis­la­tion. We be­lieve the same is true in the Sen­ate.

“Ex­pand­ing the CBM pro­gram is not just ill-ad­vised from a polit­ic­al stand­point, but from a policy per­spect­ive as well.”

Sen. Chuck Schu­mer has favored the CBM ex­pan­sion, in­tro­du­cing a bill last year that would al­low the re­view meth­od for all in­dus­tries and make it per­man­ent. In Decem­ber, the New York Demo­crat de­clared that “a pat­ent-re­form bill that does not ad­dress pat­ent qual­ity is like treat­ing the symp­tom in­stead of the dis­ease.”

“If any­one thinks they have val­id pat­ents, they shouldn’t be afraid of a pre­lim­in­ary pro­ceed­ing,” Schu­mer said dur­ing a Ju­di­ciary hear­ing ex­amin­ing pat­ent lit­ig­a­tion. “The only people who are afraid of this are those who know their pat­ents are in­val­id.”

Pat­ent-lit­ig­a­tion re­form is cap­tur­ing some re­newed in­terest in Wash­ing­ton after a brief lull fol­low­ing the pas­sage of the In­nov­a­tion Act. On Tues­day, Pres­id­ent Obama urged Con­gress to “pass a pat­ent re­form bill that al­lows our busi­nesses to stay fo­cused on in­nov­a­tion, not costly and need­less lit­ig­a­tion.”

Those 19 words may have been a fleet­ing nod to re­formers, but the pat­ent com­munity took it as a re­as­sur­ing sign that this time, at least, Con­gress and Obama agreed something needed to be done soon to curb the grow­ing ab­use of pat­ent trolling, which by some es­tim­ates cost the eco­nomy tens of bil­lions of dol­lars a year. The White House has en­dorsed Good­latte’s In­nov­a­tion Act and also urged ex­pan­sion of covered busi­ness meth­od re­view.

“It was a brief men­tion, but a strong men­tion,” said Mi­chael Beck­er­man, pres­id­ent and CEO of the In­ter­net As­so­ci­ation. “This does need to be on a little bit of a quick timeline, by Sen­ate stand­ards, be­cause this is an elec­tion year.”

Minor­ity Lead­er Mitch Mc­Con­nell, who res­ol­utely re­mained sit­ting with his arms fol­ded dur­ing much of the pres­id­ent’s speech, even leapt out of his seat to ap­plaud the call for pat­ent re­form.

Elahe Izad contributed to this article.
What We're Following See More »
AT ISSUE: BENEFITS FOR COAL MINERS
Manchin, Brown Holding Up Spending Bill
54 minutes ago
THE LATEST

Sen. Joe Manchin (D-WV) and Sherrod Brown (D-OH) are threatening to block the spending bill—and prevent the Senate from leaving town—"because it would not extend benefits for retired coal miners for a year or pay for their pension plans. The current version of the bill would extend health benefits for four months. ... Senate Majority Leader Mitch McConnell (R-KY) on Thursday afternoon moved to end debate on the continuing resolution to fund the government through April 28. But unless Senate Democrats relent, that vote cannot be held until Saturday at 1 a.m. at the earliest, one hour after the current funding measure expires."

Source:
PARLIAMENT VOTED 234-56
South Korean President Impeached
1 hours ago
THE LATEST

The South Korean parliament voted on Friday morning to impeach President Park Geun-hye over charges of corruption, claiming she allowed undue influence to a close confidante of hers. Ms. Park is now suspended as president for 180 days. South Korea's Constitutional Court will hear the case and decide whether to uphold or overturn the impeachment.

Source:
CLOSED FOR INAUGURAL ACTIVITIES
NPS: Women’s March Can’t Use Lincoln Memorial
1 hours ago
THE DETAILS

Participants in the women's march on Washington the day after inauguration won't have access to the Lincoln Memorial. The National Park Service has "filed documents securing large swaths of the national mall and Pennsylvania Avenue, the Washington Monument and the Lincoln Memorial for the inauguration festivities. None of these spots will be open for protesters."

Source:
2.1 PERCENT IN 2017
President Obama Boosts Civilian Federal Pay
1 hours ago
THE LATEST

President Obama on Thursday announced a pay raise for civilian federal employees of 2.1 percent come January 2017. He had said multiple times this year that salaries would go up 1.6 percent, so the Thursday announcement came as a surprise. The change was likely made to match the 2.1 percent increase in salary that members of the military will receive.

Source:
SHUTDOWN LOOMING
House Approves Spending Bill
20 hours ago
BREAKING

The House has completed it's business for 2016 by passing a spending bill which will keep the government funded through April 28. The final vote tally was 326-96. The bill's standing in the Senate is a bit tenuous at the moment, as a trio of Democratic Senators have pledged to block the bill unless coal miners get a permanent extension on retirement and health benefits. The government runs out of money on Friday night.

×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login