IP Watchdog: Patent reform should focus on complaint sufficiency, not substantive patent law, by Gene Quinn
This post originally appeared in IP Watchdog on January 15, 2015.
A new industry coalition has been formed to push Congress to enact additional patent reform measures during the 114th Congress. United for Patent Reform is a mega-coalition of retailers and the tech industry. The coalition has the familiar tech giants who seem to always be supportive of patent reform, particularly patent litigation reform — Facebook, Google, Amazon, Oracle, Cisco and Adobe; but the group also boasts the likes of Macy’s, JC Penney, the National Restaurant Association, Realtor, and National Home Builders. The Hill is reporting that the group has planned lobbying visits, is going to be pursuing a media campaign, and will take the fight to lawmakers home districts.
UPR lists 7 goals for patent reform, which include regulating abusive demand letters, making patent trolls explain their claims, protecting innocent customers, making patent litigation more efficient, stopping discovery abuses, making patent trolls for filing frivolous lawsuits (i.e., fee shifting), and providing less expensive alternatives to challenge patents in administrative proceedings. The presentation of the issues will be appealing to many, and the list does include several things that should be relatively non-controversial, such as regulating fraudulent and misleading demand letters.
Who can argue with stopping discovery abuse, or even having frivolous patent trolls pay. The real questions on those fronts will be: (1) who is a patent troll; and (2) what is the definition of abuse. Already district courts have all the discretion they need to award fees when litigation is frivolous or vexatious, the problem is district court judges rarely, if ever, exercise that authority. It would also do everyone well to remember what Senator Mazie Hirono (D-HI) said during the confirmation hearing of Michelle Lee in December: “One person’s patent troll is another person trying to protect his or her patent.” Indeed, the term “patent troll” has largely come to mean “someone who is suing me for patent infringement,” which is in no small part due to the successful campaign waged by high tech companies to vilify not only abusers, but all inventors.