More Action From White House to Curb Patent Abuses

, Corporate Counsel

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The White House on Thursday announced new initiatives intended to create more transparency and reduce abusive and deceptive practices in the U.S. patent system—part of the Obama administration’s effort to curb the activity of so-called patent trolls.

The administration also detailed steps it has already taken in this regard and reiterated its call to Congress to pass bipartisan legislation that will further reform the U.S. patent system and reduce abusive litigation brought about by patent trolls, a term used to describe entities that buy up and assert patents to extract payments via settlements or litigation.

At a press conference with key economic and technology advisers, including White House chief technology officer Todd Park, National Economic Council director Gene Sperling, U.S. Commerce Department Secretary Penny Pritzker, and acting director of the U.S. Patent and Trademark Office Michelle Lee, the administration unveiled three new executive actions designed to strengthen the patent system. (These are in addition to the executive actions and legislative recommendations President Barack Obama introduced in June 2013.)

The new actions include:

  • Crowdsourcing Prior Art: The PTO will implement measures to make it easier for the public to provide information about relevant prior art in patent applications, including by refining its third-party submission program, exploring other ways for the public to submit prior art to the agency, and updating its guidance and training to empower examiners to more effectively use crowd-sourced prior art. The administration is calling on the public and experts to share prior art—a move it says will improve patent quality.
  • More Robust Technical Training: The PTO is expanding its technical training program for patent examiners to help them keep up with fast-changing technology, and is making it easier for engineers and other experts to provide technical training and guidance to patent examiners. The White House is asking experts to volunteer their time and expertise in this endeavor.
  • Patent Pro Bono and Pro Se Assistance: The PTO will increase the assistance it provides to inventors who cannot afford legal representation to take them through the patent process. It will appoint a full-time pro bono coordinator and expand the existing America Invents Act pro bono program to cover all 50 states. The administration is calling on members of the patent bar to participate in the program.

At the press conference the White House also detailed progress it has made in implementing the orders and recommendations it issued in June.

It described a draft rule it introduced in January to promote transparency that would require patent applicants to specify “attributable owners.” Patent trolls are known to hide behind shell companies.

It also said the PTO has developed and implemented a training program to help its examiners ensure that functional claims in patent applications are clear and can be consistently enforced.

And to help protect consumers and small retailers from deceptive and abusive patent litigation tactics, the PTO announced the launch of an online toolkit that will provide information about patent suits and details about specific patents.

Included in that toolkit are outside resources that consumers can use free of charge. One of these is designed by Lex Machina, the legal analytics company that grew out of Stanford University’s computer science department and law school. Lex Machina uses data to assist companies and law firms in intellectual property litigation. And as a public service, it will provide a link on the PTO website that will enable targets of patent trolls to upload and compare demand letters.

“This way people can get quick information about the party threatening to sue,” said Josh Becker, chief executive officer of Lex Machina. “They can determine whether the company is likely just trying to make a quick buck and get a quick settlement or whether it might actually have a legitimate claim.”

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