By Scott A. McKeown
| December 20, 2012
Business-to-Business Initiative Drives Government Interest
Small technology companies and start-ups face a daunting task in enforcing their intellectual property due to the cost prohibitive nature of patent litigation. In year's past academics and major bar associations would often brain storm as to how these market participants (as opposed to NPEs) might be able to cost effectively get a fair shake in the U.S. patent system. Back in 1989, an idea was floated that perhaps the government could help out by establishing a small claims court of sorts to allow such small players an opportunity to prove their case.
For example, where relatively small amounts of licensing revenue/damages are at stake, (e.g., 3 million or less) it is frustrating for small organizations to be faced with a legal bill of equal value to the potential recovery. Although these goals are far from clear in this week's Federal Register Notice (here), the USPTO is soliciting commentary on the concept of creating a small claims court that would be voluntary in nature, likely exclude NPEs, and focus on small (a few million or less) business-to-business disputes
Specifically, the USPTO wants to know if there is a need for such a court and the general ideas of the public on how such a court would operate, the proper venue, arbiters, pleadings, etc.
Again, although unstated in the Notice, one idea is to build on the existing Patent Pilot Program of the District Courts. While not every district participates in this program, those located in inconvenient venues might seek out the U.S. Court of Federal Claims as a default venue. Although not widely know, this court routinely considers patent disputes centering around government and defense related activities. The concept is to voluntarily allow some disputes to be heard by this tribunal with limited discovery, and a fast track decision. As roughly 3.4% of patent cases make it to trial, it is believed that such a program, perhaps limited in duration as a pilot program, would more cost efficiently drive such "small claims" B2B disputes to a more market effective solution.
(Note: This post has been updated from the original version to expand upon the broader based policy rationales, which were unfortunately left out of the Notice)