I don’t even know where to start on this one but here goes.
Yesterday President Obama announced that his Administration is going to take on patent trolls. From the White House press release on the matter:
“The White House issued five executive actions and seven legislative recommendations designed to protect innovators from frivolous litigation and ensure the highest-quality patents in our system. Additionally, the National Economic Council and the Council of Economic Advisers released a report, Patent Assertion and U.S. Innovation, detailing the challenges posed and necessity for bold legislative action.” (emphasis added.)
How exactly does the Executive Branch intend to solve these perceived problems?
1. By requiring updated patent ownership information at the USPTO (so you know who’s suing you);
2. By reeducating patent examiners to think like the Administration thinks they should about functional claims;
3. By creating a “You will know that you have been sued by a Patent Troll when…” page;
4. By discussing and studying the problem with Academics; and
5. By auditing the ITC and Customs.
So if I can extrapolate from this, here’s how the Obama Administration sees the issue. Patent examiners don’t know how to examine “functional claims”. This leads to bad patents that somehow only end up in the hands of patent trolls, and you’ll know you’re dealing with a bad patent when a troll is the assignee. (I’m really not sure why the President dragged in the ITC and Customs.)
Really? This is the best the President’s men can do?
Just when I thought the discussion couldn’t get any worse, I’m floored by the incompetence, or perhaps it’s willful blindness, that our President and his administration is showing when it comes to patents, patent litigation, and “trolls”.
Seriously, people, we are living in the story of Chicken Little, and the Obama Administration is playing the starring role.
“The sky is falling! The sky is falling!”
And the President is here to save us.
With all due respect, the President is so far off the mark here. It’s laughable.
I know there are technology executives from Silicon Valley whispering in his ear about the crimes that the evil patent trolls have committed against them. And they’ll be handing him tons of cash over dinner soon. But couldn’t the Administration just try to gain some perspective.
And I know perspective is hard to find in Washington, D.C. right now. But try.
Can’t he smell the hypocrisy?
These technology companies (his donors) want to stop “frivolous” lawsuits while at the same time be able to sue whomever they want with whatever patent they have.
Because of course, their patents are valid and well examined. It’s just the ones enforced by “trolls” that aren’t.
In fact, I think the President would be better served by just decreeing that if you’re a non-practicing entity, there is a presumption of invalidity. (I know. I know. He can’t but you know he’d like to.) Because based on the recommendations of the Administration, it’s obvious that trolls couldn’t own an enforceable patent.
Does there need to be a discussion about abusive patent litigation? Yes. But when the President is only talking to (and receiving big fat donation checks from) very bias actors who play a central role in the problem, the discussion isn’t really worth much.
As Gene Quinn of IPwatchdog.com said in his blog post of yesterday:
“Yes, tech giants get sued on terrible patents that are clearly invalid and which they don’t infringe anyway, but those same tech giants settled bad claims on crappy patents while at the same time they litigate to the death good, valid patents on important technologies that they do infringe. There are few “Snow White” players in the patent litigation space, and the constant vilification of patent trolls and claims that the patent system is broken are too broad to the point that they are misleading.”
Of course so much of the President’s remarks are simply rhetoric. He can’t change the nature of patent litigation. He has no power to change the patent laws. We still have a Constitution and the Doctrine of Separation of Powers is still alive and well, so only Congress can do that.
And for that I am kind of grateful. (But they did pass the AIA so I’m not totally confident that Congress won’t screw things up.)