The White House Releases Update on "Protecting American Inventors and Innovators"

By Andrew Williams --

Earlier today, the White House provided an update on the five executive actions that it announced in June of 2013.  At the time, we reported on the President's legislative recommendations and executive initiatives, as well as the Patent Assertion and U.S. Innovation report that accompanied them (see "'When the Patent System is Attacked!' -- The White House Task Force on High-Tech Patent Issues").  In addition to "announcing major progress" today on these initiatives to combat so-called "patent trolls" ("FACT SHEET -- Executive Actions: Answering the President’s Call to Strengthen Our Patent System and Foster Innovation"), the White House hosted a live webcast entitled "Building a Better Patent System."  President Obama did not participate, but instead PTO Deputy Director Michelle Lee, Secretary of Commerce Penny Pritzker, U.S. Chief Technology Officer Todd Park, and Gene Sperling, Director of the National Economic Council collectively spoke for about 30 minutes on how the executive actions were "building a better patent system" ("Building a Better Patent System").

With regard to the progress of the patent litigation reform legislation, Mr. Sperling acknowledged that the White House did not agree with everything that ended up in the Innovation Act.  There was some suggestion that the fee-shifting provision found in the final House bill was not what the White House was expecting.  Instead, the President had originally suggested modifying the patent attorney fee provision to have it mirror the equivalent provision in the copyright statute.  This, presumably, meant removing the "exceptional case" requirement, while maintaining the default "American Rule," in which generally both sides pay their own costs.  Of course, the provision in the Innovation Act adopted the so-called "British Rule," with the default being that the losing (i.e., non-prevailing) party pays.  Mr. Sperling indicated that the White House was open to comprise on the issue.  Nevertheless, he said the President is hopeful that he will be able to sign the new legislation into law sometime in 2014.

As for the executive initiatives, the most immediate was the launching of a new "on-line toolkit" "[t]o help level the playing field and ensure individuals and businesses know their rights and are aware of available resources before entering into costly litigation or settlements . . . ."  On this site, there are icons for various resources directed to victims of abusive patent practices.  The first link provides information for what to do if "I've been sued," which provides information about the patent litigation process.  Also within this link are resources to help find a lawyer (with links to the Office's list of registered patent agents and attorneys, as well as state bar attorney lists), determine if anyone else has been sued over the same patent, and provide information about challenging the patent at the Office.  Another link is directed to individuals that have received demand letters.  The resources on this site include identifying options for the demand-letter recipient, providing guidance if the recipient is an end-user customer (with convenient links to the states attorney general's offices and the FTC), and providing links to find out more information about the asserted patent and who might be behind the demand letter.  The PTO toolkit also includes links to help identify related cases, to provide information about the patent infringement process, and to more generally provide information about patents.

Perhaps the most interesting link on this new "online toolkit" website is the "Resources and Glossary."  In this section, the Patent Office provides links to several other sites, at least one of which has stated quite plainly that "the patent system is broken," and that the "US Patent Office . . . issues questionable patents every day."  One of the "resources" is to a crowd-sourcing website, Ask Patents, which can assist accused infringers in identifying invalidating prior art.  This is the same website that the Electronic Frontier Foundation ("EFF") used to help find the art that was cited in its petition for Inter Partes Review of Personal Audio's podcasting patent (see "When NPR Podcasters Hit the Patent System – An Update").  In addition, one of the "resources" is a link to the "Trolling Effects" website, which "is a project of the Electronic Frontier Foundation . . ." ("About Trolling Effects").  This site also starts from the premise that the patent system is broken, and offers a "crowd-sourced" demand-letter database.  Of course, submission of demand letters is purely voluntary, and is, for obvious reasons, only done by recipients.  Currently the database holds about 45 letters.  And, not surprisingly, another one of the "resources" is the EFF website itself, ostensibly for the purpose of providing "legal services and referrals, through a 'Cooperating Attorney' list."

On the subject of "crowdsourcing," the White House also announced three new executive actions aimed at "encouraging innovation and further strengthen[ing] the quality and accessibility of the patent system."  The first of these, "Crowdsourcing Prior Art," is a new initiative to expand ways in which the general public can help patent examiners and applicants find prior art.  No details were provided, however, about how such a system would work.  Second, the White House indicated that it was introducing more robust technical training for its patent examiners.  The Administration is requesting that "innovators . . . volunteer their time and expertise" to provide such training.  Finally, the White House indicated that it will dedicate resources to assist inventors without legal representation.

Patent Docs will continue to report on any updates from the White House related to these executive actions and initiatives.

Comments

[Heebie-Jeebies]

If the current occupant of 1600 Pennsylvania Avenue wants to improve the patent system, there are some steps that seem better suited for reaching that goal than what his minions announced yesterday. For example, he could appoint a real director at the PTO, preferably one who *isn't* a shill for the established players in Silicon Valley or Armonk. This would allow the PTO to stop operating like a beheaded chicken. If he thinks crowd sourcing is a good way to attack granted but invalid patents, a post-facto solution if ever there was, why not figure out a way to make use of crowd sourcing in the examination process, to *prevent* those invalid patents from being issued in the first place? I'm not impressed, but then I've learned not to expect much from this POTUS in anything he does.

[EG]

Andrew,

Our current Chief Executive has been hypocritical in his misuse of Executive Orders. And as a former Constitutional Law prof, he knows better, so I’m giving him no slack at all on this.

This misuse unfortunately has now invaded are our area of the law. With respect to this so-called "transparency" proposal to have those allegedly with “attributable ownership” disclose that fact, under penalty of abandonment of the application involved, I’ve yet to see anyone give me a plausible basis in the patent statutes for this rule. For example, the express letter and intent of the assignment statute (35 USC 261) provides no basis for this proposed attributable ownership” rule. This is yet another example of the Executive Branch trying to do an illegal and unconstitutional "end run" around Congress.

[Skeptical]

The stench of partisanship is overwhelming.

[Michael Sullivan]

I wish that they would better consider use of the word "troll" (Cf the wiki on this term: it's a supernatural being orginating from Norse mythology). Every time I hear someone worried about 'trolls' or the like, I think of some of my former Patent Assertion Entity clients, which included, e.g. small mom and pop inventors and research universities. When I think of this administration saying innovation is at risk by such trolls -- i wonder who they're really protecting... is it the major high tech players like go*gle, app*e, f**book, etc... ??

I think it is -- nice that they all seem to say the problem is 'frivolous' litigation -- but don't you think the Third Branch of the government should be best equipped to handle this?

Very annoyed by this situation (and a purported Deputy Director who's already itching for more reform, even though the AIA only finished kicking in last year).