STRONGER Patents Act – a Masterpiece

The opening lines of the press release announcing the introduction of the Senators Coons’ and Cotton’s STRONGER Patents Act (SPA) emphasize the bill’s important economic impact. They understate the bill’s breathtaking legal impact which is set forth in two other summary documents linked in the release; a “one pager” and a “two-pager.” Both are concise and must read. They reveal a masterpiece of common sense content designed to restore our once gold standard patent landscape to its former greatness. All three important documents are linked below. Here is a preview:

Among other things, SPA’s enactment would end PTAB’s reign of terror over lesser-resourced inventors and disruptive technology by harmonizing its burden of proof and claims construction standards with those of the district courts restoring patents’ presumption of validity while confirming patents’ property rights. Its put-up-or-shut-up one-time PTAB claims nullification process, its standing requirements and its meaningful estoppel provisions will help curb routine and abusive misuse by efficient infringer defendants against under-resourced early stage innovation. There are more equally important provisions.

Continue reading STRONGER Patents Act – a Masterpiece

Fundamental Incongruities of PTAB Operations Affect the Integrity of the Patent System

This article appeared first on ipwatchdog.com

The first 100 days of the Trump Administration have now come and gone. So far, they have not revealed much more than the obvious fact that there is a significant disconnect between President Trump’s 4-year re-election objectives and the 2-year re-election timetable of House Republicans. Retaining their seats is job one for both. The President believes that will require Republicans to enact legislation on the issues central to the President’s campaign and the party Platform; issues Republicans have been complaining about over the past eight years.

The mismatched re-election priorities of Republicans can be expected to continue roiling Capitol Hill throughout the remainder of 2017 and likely into 2018. With healthcare and tax reform likely to take up much of the summer oxygen in Washington, DC, and into the fall of 2017 when insurance premium hikes will be announced again, what, if any, signature Republican issues will be addressed remains in significant doubt.

With small ball policy left far behind by both inter-party and intra-party politics, what will the current state of Congressional legislative enactment capacity mean for patent reform? An argument could be made that so much energy will be placed elsewhere that matters of peripheral importance in the greater scheme – like patent reform – will receive no attention. But intellectual property generally and patent policy more specifically tends to be an apolitical issue where ideologues on both sides of the aisle can reach agreement. Without knowing how the cards will fall, and given that those who perpetually seek patent reform are once again working the halls of the Capitol, prudence suggests that those with a pro-patent vision remain ever vigilant.

Last week IPWatchdog.com explained why eBay, Mayo and the creation of the Patent Trial and Appeal Board to hear post-grant challenges to patents were the three most significant legal causes of today’s patent crisis.  The common thread that led to each “event” was a brilliant anti-patent strategy that converted policy maker apathy towards patents and our nation’s innovation ecosystem into a belief that simply stopping a few bad actors by passing comprehensive patent litigation reform would solve any ills.

The patent troll narrative has worked well. Indeed, at a recent hearing of the Senate Judiciary Committee Senator Dick Durbin (D-IL) quipped: “Whoever came up with that phrase should get a special bonus because they manage to mischaracterize anyone who goes to court to assert patent rights as a troll…”

The beauty of the patent troll narrative was it took little time to absorb and instantly painted a pejorative picture in the minds-eye of the listener. It became easy to repeat. Its bumper-sticker simplicity led to widespread usage, which ultimately (and quickly) became accepted as fact without much, if any, critical thought. Most important, the strategy by-passed the arcane complexity of its convoluted subject matter by shifting the burden of Congressional persuasion to its victimized and under-resourced opponents. Politically outmatched from the start – inventors and innovators had, up until this point in our history, always been held in high esteem were overwhelmed. That suddenly changed with the patent troll narrative and inventors became persona non grata, even viewed as evil and villainous. Indeed patent reform’s innate obscurity was its most important ally. Few knew more than the patent troll narrative, so as it was often repeated people unfamiliar with patents on even the most basic level became horrified by the myth the narrative painted.

Over the next 100 days, patent reform’s obscurity may become the enemy of patent reform instead of its ally. After all, if the public isn’t interested in patent reform why should President Trump spend time on the issue? Moreover its proud parent, “efficient infringement,” has now become the enemy of Trump’s conservative, property-devoted base. Patents are property rights as has been recognized by the U.S. Supreme Court for over 100 years and as stated explicitly in the Patent Act. Nevertheless, the patent troll narrative has returned to Capitol Hill. Even with more pro-property right, security-conscious, conservative allies than in previous cycles patent reform opponents, who 500 days ago rallied loudly enough to make HR 9 too controversial for pre-campaign enactment, must rise again.

Expect big tech and its leftist bed-fellows to exert more effort to “de-propertize” patents on Capitol Hill and in the courts. Expect to hear that every patent holder who protects her lawfully established exclusivity by responding to efficient infringement in courts to be called “ambulance chasers.” Expect proponents of reform to mischaracterize patent reform as a step towards tort reform, which is nearly comical given that the tortfeasor in the equation is the party that is trampling on the property rights of patent holders through infringement, which is many times purposeful and willful. Expect lobbyists for Main Street retailers to again be flattered by attention from big shot Silicon Valley lobbyists and support their latest version of the anti-patent, anti-property right patent troll narrative. Expect new academic junk science and more speculation by professorial patent policy “experts.” Expect the USPTO to praise the PTAB’s star-chambered repression of so-called “bad patents.” Expect efficient infringement to continue while the courts and Congress are asked to dither over patent trolls.

We must explain the truth to those who understandably drank the patent troll Kool-Aid and believed that Silicon Valley’s tears for Main Street retailers were real. Efficient infringement’s cheaper, faster, better economics compel its continued deployment. The patent troll narrative has distracted Congress and the courts from seeing how it protects incumbency for our nation’s most dominant big caps by diluting investability in new technology that might one day unseat them. The patent troll narrative’s flaw is that the repressive litigation it supports applies not to a few remaining patent abusers but to ALL patent holders, especially startups who produce the most jobs.

The efficient infringement narrative is no more complicated than the troll narrative. The patent troll narrative just reached the Hill first, which means the story of efficient infringers trampling patent property rights, though perfectly true, has a tougher road given it must not only gain its own traction but it has to undo the damage caused by the misleading patent troll narrative.

To be re-elected Congress may need to focus on less obscure issues this year than patent reform. But if party leaders choose to consider patent reform the bill will be driven by the patent troll narrative, not its content. Pro-patent Senator Chris Coons (D-DE) has wisely reminded us that Congress likes to learn through stories. Patent reform’s proponents will again bypass content explanations by repeating the patent troll narrative. Pro-patent opponents can respond with their own efficient infringement narrative. Let proponents then explain the contents of any bill in simple, easy to understand terms. Let us work to put a face on efficient infringement, which has ruined so many inventors who have seen Silicon Valley giants make so many millions of dollars infringing patents after taking technology originally invented by individuals and small start-up businesses who never had a chance.

 

Water Balloons and Commercialization’s Public Benefit Delivery

Paul Morinville is Managing Director of US Inventor, Inc and a tireless and effective Hill advocate for strong patents. With the story below Paul demonstrates the power of a memorable narrative when pro-patent universities discuss patent reform with congressional Members and Staff. Hill folks have busy schedules and short attention spans. Patent law’s arcane complexity is a time-suck buzz-kill for most. It cannot be compressed into an elevator speech. But water balloons?……now that’s a different story. Addressing a patent law conference earlier this month patent champion and STRONG ACT sponsor Senator Chris Coons diplomatically emphasized the importance of “narratives” when explaining the parlous state of today’s destabilized commercialization dynamic. We know that as patent protection become increasingly less assured, private sector investment becomes increasingly harder to attract. Because of PTAB nullifications and other investment deterring uncertainties, commercialization’s public-private partnerships are now becoming an endangered species. Continue reading Water Balloons and Commercialization’s Public Benefit Delivery

Commercialization’s Status as Congress Opens

Below are two posts of consequence as we move into the early days of the 115th Congress. The first is by IPW’s Steve Brachman. It provides reliable solid background information on patent policy activity as we move into 2017. It is up to Steve’s usual concise excellence.

The Four Consequential Patent Trends of 2016 By Steve Brachmann on Dec 30, 2016 09:15 am Continue reading Commercialization’s Status as Congress Opens

Conference on Sec 101 and Joe Allen on Bayh-Dole, Past and Present

We attended an excellent conference at Covington & Burling this AM sponsored by Inventing America and IPWatchdog. The panels and speakers are listed below. An all-star cast gave a great performance. The first panel was moderated by Qualcomm’s Lauri Self and the second by IPW’s Gene Quinn. The morning’s focus was on the real life impacts of recent SCOTUS decisions addressing patent eligibility. After the state of developing law was ably explained by Jeff Lefstin, the panelists talked about the harms the decisions have caused and what to do about the new uncertainties haunting patent eligibility under Sec 101. The new doctrines emerging from several SCOTUS decisions are commonly referred to as Alice-Mayo eligibility .We will explain the problems in detail later. Suffice it to say for now that because commercialization occurs so early in the development sequence, every problem discussed most adversely affects research university Bayh-Dole execution. Continue reading Conference on Sec 101 and Joe Allen on Bayh-Dole, Past and Present