White House announces new actions aimed at curbing 'trolls,' strengthening patent system

By Jessica M. Karmasek | Feb 25, 2014

WASHINGTON (Legal Newsline) -- Last week, the Obama administration announced a series of executive actions that aim to protect businesses from so-called "patent trolls," strengthen the country's patent system and foster innovation.

Officials say the actions will help American entrepreneurs and small business owners more effectively deal with abusive litigation practices and help ensure the patent system keeps up with the evolving needs of industry.

The three new executive actions, announced Thursday, include:

- Crowdsourcing "prior art" -- The U.S. Patent and Trademark Office will harness the power of crowdsourcing by partnering with the innovation community to identify technical and hard-to-find information, known as "prior art." This will help patent examiners make more informed decisions about whether an invention is worthy of a new patent;

- Pro se/pro bono support -- The USPTO will create a public-private partnership that aims to provide nationwide pro bono support and resources for inventors and small business owners who apply for patents without legal help. This action will help level the playing field for such individuals, enabling more entrepreneurs to more easily navigate the patent application process and get their goods to market faster; and

- Robust technical training and expertise -- The office will strengthen patent examiners' knowledge base by expanding an existing training program. This will improve the quality of patent examinations and ensure examiners have the most relevant and current information.

Officials with the U.S. Department of Commerce and USPTO joined the White House in announcing the actions, including U.S. Secretary of Commerce Penny Pritzker; Gene Sperling, assistant to the President for Economic Policy and director of the National Economic Council; Todd Park, assistant to the President and U.S. Chief Technology Officer; and USPTO Deputy Director Michelle Lee.

"As someone who has worked in business for 27 years, I know first-hand that protecting and promoting our ideas-driven economy is essential to economic growth," Pritzker said. "Today's executive actions show President Obama's recognition of the work we must do to constantly strengthen our intellectual property system.

"Intellectual property-intensive industries account for over one-third of our nation's Gross Domestic Product and nearly 28 percent of jobs, according to the latest data. Clearly, IP protection is a pillar of the U.S. economy, and we should be doing everything possible to ensure a smart, 21st Century patent system.

"Overall, the goal of these executive actions is to enable America's entrepreneurs and businesses to focus their time and resources on what they do best -- drive innovation, increase U.S. competitiveness, and create jobs -- not wasting money in courtrooms."

The three actions are in addition to the handful of executive actions and legislative recommendations Obama unveiled in June.

Those were designed to increase transparency of patent ownership information; tighten scrutiny of patent claims; provide resources to help consumers and small-business owners defend themselves against patent infringement claims; and expand dedicated outreach and study to build consensus on patent policy and laws.

Lee said the USPTO has made "significant progress" in implementing the actions.

In particular, under a proposed new rule, the office would collect patent ownership information for a patent or application and make that information available to all via its website.

The USPTO also has implemented a multi-phased training program for patent examiners. Lee said it also plans to launch a pilot program that uses glossaries to define terms in a patent with the goal of further promoting patent clarity.

The office also, Thursday morning, published a new online toolkit. The toolkit is designed to help level the playing field for smaller "Main Street" retailers and consumers -- those who can't afford teams of patent attorneys.

The website's resources include ways to find information about the patent being asserted -- including its assignment information or its past litigation history -- and ways to determine if other businesses are being sued over the same patent.

"We know of no other online resource, where a recipient of a patent infringement letter can go to get as much information as is available in this toolkit," Lee said.

The office also has ramped up its public outreach efforts and expanded its Thomas Alva Edison Visiting Scholars program, in which scholars are brought on board for a limited time to examine IP issues.

Lee said the USPTO already has recruited Joshua Sarnoff of DePaul University, Jonas Anderson of American University and Elizabeth Bailey of U.C. Berkeley to research keys issues related to patent litigation.

The office, she said, will be announcing more scholars soon.

"By engaging legal and economic scholars with agency experts, we anticipate a wealth of new research and data," Lee said.

"Empirical examination of the interaction of various aspects of our patent system will provide insights on how to further reduce unnecessary litigation and improve the quality of patents."

On Thursday, the administration also renewed the President's call in last month's State of the Union address for legislation to combat "patent trolls."

Generally speaking, a patent troll, or non-practicing entity or patent assertion entity, purchases groups of patents without an intent to market or develop a product.

In some cases, but not all, the entity then targets other businesses with lawsuits alleging infringement of the patents it bought.

"The administration urges Congress to pass a bipartisan law designed to curtail abusive patent litigation and improve transparency in the patent system," the White House said in a statement.

"We are encouraged by Congress' strong, bipartisan attention to these issues and look forward to working with the Congress and stakeholders to bring this important bipartisan legislation to the President's desk this year."

The Innovation Act, introduced by U.S. Rep. Bob Goodlatte, R-Va., passed the House in December by an overwhelming bipartisan vote; however, it remains in the Senate, where lawmakers are carefully considering it.

From Legal Newsline: Reach Jessica Karmasek by email at patents@legalnewsline.com.

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