Patent Law Reform

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Congress to Choose Between Competing Definitions

One of the more intriguing mechanisms of the America Invents Act (AIA) is the Transitional Program for Covered Business  Method (CBM) Patents. To date, these speciailized post grant patent challenges have been pursued in relatively limited numbers as compared to the more generic Inter Partes Review (IPR) proceedings. The reason for the disparity between CBM and IPR filing rates is quite simple — IPR is available for any technology not just “business method patents.” Yet, the CBM proceding is far superior to IPR in many strategic respects.

Recognizing the potential of CBM filings to have a greater impact on the patent litigation landscape, Congress is actively considering alterations to the existing statutory framework that would encourage greater use of this AIA mechanism.…

Continue Reading Congress Considers Reformulation of Business Method Patent Definition

Competing Bills Target Patent Troll Business Model

Congress has gotten the patent troll memo in a big way. The political stage is being set for a summer of legislative festivities. Like any good summer festival, Congress is separately establishing main and side stage legislative spectacles. The side stage spectacles, the more alternative acts, such as the Shield Act; Patent Abuse Reduction Act of 2013; and the Patent Quality Improvement Act will occupy many until the main stage effort takes shape. Last Friday the main stage act was announced.

House Judiciary Committee Chair Bob Goodlatte (R-VA), a key participant in the legislative effort behind the America Invents Act (AIA) released a draft bill that seeks to sweep in many of the concepts of the competing bills, while introducing fixes to the AIA. (here). The bill puts a new spin on the competing legislative proposals that address discovery controls, loser pay mechanisms, and the revision to notice pleading (brief overview here). Certainly these “troll” specific proposals will get the bulk of the attention from Congress and the public. As to the proposed “improvements and technical fixes” to the AIA, the draft post grant proposals are a mixed bag.
Continue Reading Patent Reform Palooza Hits Congress Summer 2013

Congress Proposes Yet Another Anti Patent Troll Bill

Fresh on the heels of the Patent Quality Improvement Act (S.866) comes the Patent Abuse Reduction Act of 2013 (here) introduced yesterday by Senator John Cornyn (R-Tx). The newest Senate bill, like the one from earlier this month, also is designed to target patent trolls. While the earlier bill sought a way to short circuit high cost litigation through a more cost effective USPTO post grant review procedure, the newest bill seeks to create a loser pays system and completely revamps patent litigation pleading and discovery practices.

On the pleading side, the Bill proposes that simplistic Form 18 of the Federal Rules of Civil procedure (FRCP) be abandoned in favor of very detailed allegations that identify specific claims, infringing products/methods by name and model #, detailed claim mappings to each product, and a host of other information. The Bill also proposes a “pay to play” discovery system in which certain types of discovery are financed by the requesting party, and a loser pays outcome in certain situations.

The Bill is essentially a wish list of every company that has ever been sued by a troll, but does it throw out the baby with the bath water?
Continue Reading Congress Proposes to Rewrite FRCP for All Patent Cases

Senator Schumer Readies Second Round of Patent Reform

Although many of the more significant changes to U.S. patent law provided by the America Invents Act (AIA) are only months old, Congress is already considering a re-calibration of these changes. Over the past few months the patent troll dilemma has been given significant attention by Congress and politicians are now clamoring to fashion legislation to address the problem. While the “SHIELD Act” has been discussed for the better part of the last year, and rewritten in that time frame, lawmakers are well aware that this “loser pays” proposal is significantly flawed and a non-starter in a political sense. As a result a new legislative solution is rumored for consideration by Congress next week. The new bill will propose an expansion of the patentability trial mechanisms of the AIA.

While the legislation is not yet public, Senator Charles Schumer (D-NY) will introduce legislation that will force trolls to the USPTO before they can file a lawsuit. (Senator Schumer was the force behind the Transitional Program for Covered Business Method (CBM) Patents) It is unclear exactly how this “PTO first” control will be mandated. The new legislation is rumored to remove the “transitional” nature of the CBM program and to expand the standing required for a CBM proceeding to include any patent asserted by a patent troll.

One might argue that the legislation is unnecessary since any defendant can already seek review at the USPTO via CBM or Inter Partes Review (IPR). In fact upward of 50% of such filings already relate to troll suits. Yet, the intent here seems to be…
Continue Reading Congress Poised To Force All Patent Trolls to PTAB

trollSince the enactment of the America Invents Act (AIA) in September of 2011, the “patent reform” embodied by the AIA has been slowly rolling out. In fact, the bulk of the truly significant changes to patent law are only months old, some still weeks away. These changes include the change over to the first inventor to file model on March 16th, and the kick off of the new post grant patent proceedings 6 months back. With so much recent change it would seem premature to consider further changes to patent law until the last round has had time to take effect…but politicians disagree.

Evidently at least one Congressman feels that the AIA does not go far enough to combat patent “troll” lawsuits. Congressman Defazio of Oregon is sponsoring yet another bill entitled “Saving High-Tech Innovators From Egregious Legal Disputes Act.” The bill, like its 2012 predecessor, proposes that the costs (including attorney fees) of certain types of patent lawsuits should be recoverable from the Patentee once the court finds the patent invalid, or not infringed. The 2012 version of the bill was limited to software type inventions and mandated payment for only frivolous suits. 
Continue Reading Loser Pays Patent Troll Legislation Flawed

President Decries Software Patent Extortionists

Last week during his YouTube broadcast, President Obama labeled software patent trolls as extortionists. In doing so, he also commented that the recent patent reform only went “half way” to solving the existing patent litigation explosion in this area. Shortly thereafter the Internet was abuzz that perhaps the Administration was considering a new legislative effort.

Perhaps most interesting is the President’s characterization of the previous reform effort as only going “half way.”  Can the Administration really be considering a second salvo?
Continue Reading Patent Reform Redux?