In a recent blog post, I wrote about the growing numbers of state legislatures and attorneys general who are pushing for the use of consumer protection laws to curb the widespread extortion of small businesses by patent trolls. Now the White House has unveiled new initiatives to further curb patent litigation abuse and strengthen the patent system. At a public roundtable event February 20, the White House announced three new executive actions to be implemented by the USPTO:
1] Crowdsourcing Prior Art: To improve the quality of patents issued and reduce overbroad or invalid patent claims, the USPTO is undertaking a new initiative to help companies and interested citizens find relevant “prior art” (information showing whether an invention is truly novel or not) and make it available to patent office examiners. Private sector crowdsourced prior art research firms such as Article One Partners have already proven effective in helping companies invalidate patents after they are issued. Creating ways for companies and private citizens to locate such prior art and make it available to the USPTO early in the examination process could help better patents issue in the first place.
2] Better Technical Training for Patent Examiners: The USPTO will expand its program to provide better technical training to patent examiners by enabling volunteer engineers and technologists from industry and academia to provide their expertise to examiners. As retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit Paul Michel told Federal Lawyer magazine last October, improved training could have a significant effect in reducing the number of vague and low-quality patents issued. “Thirty years ago, the examiner corps was older and far more experienced,” Judge Michel told the magazine. “Many of them went to law school at night, paid for by the patent office — a program, by the way, that the patent office unwisely dropped a decade ago. [But today], examiner training is not what it needs to be. Few examiners [understand the] requirement for claim definiteness, enablement, and that the claims be no broader than the written description. This, just as much as inadequate review of the prior art for novelty and non-obviousness, is responsible for many of the poor-quality patents issued.”
These first two measures are intended to address patent quality. Many, including the United States General Accountability Office point to patent quality as a major underlying problem behind patent trolls.
3] Pro Bono and Pro Se Assistance: To help make the patent system more accessible to independent inventors and small businesses, the USPTO will provide educational and practical resources to inventors who lack legal representation and appoint a full-time Pro Bono Coordinator to oversee the program. The USPTO also launched an online toolkit designed to help consumers and small businesses know how to respond to patent troll demand letters.
One clear benefit of these Administration moves is that they address the abusive behavior of patent trolls and weaknesses in patent issuance without risking the harm to the innovation system that could arise from overly-aggressive changes to patent law itself. Gene Sperling, assistant to the President for economic policy, said that, while the administration “had no choice but to take action on patent trolls,” the White House also does not agree with all the features of the recently-passed Innovation Act in the House, which many believe include several draconian – and arguably less effective – changes to patent law.
For the full text of the White House press release on the new initiatives, click here.