According to Chief Judge Rader, patent litigation abuse (which he referred to as “litigation blackmail”) occurs when a plaintiff patent owner attributes a high value to an asserted patent with the intention of extracting a small settlement from an alleged infringer defendant. He went on to outline a four step approach to curb patent litigation abuse, summarized simply as:
• Limits on e-discovery
• Early particularization of issues
• Early valuation
• More liberal use of fee awards (loser pays)
These ideas have merit and I certainly tend to favor reforms that improve transparency and reduce litigation expense and uncertainty. Judges and litigants have the power to curb patent litigation abuse. It is also helpful if these ideas can be implemented without legislation– we already know that significant patent reform legislation requires considerable time and compromise.
But let’s not presume that patent litigation reform is all that is needed or all that can be done to help. I believe that Chief Judge Rader and other patent system users should focus on additional reforms that could contribute in a substantive way.
Recall that the USPTO has been publicly brainstorming (in both requests for written comments and roundtable events) about improving the transparency of patent ownership and enhancing claim clarity. These are important initiatives that have the potential to reduce patent litigation abuse before patent litigation ever begins, or to make it easier for judges to identify patent litigation abuse. Improved transparency of patent ownership could enhance manufacturers’ ability to assess whether already licensed to patents and, if not, to design around them, thereby reducing the likelihood of patent conflict. Building the record during prosecution could reduce claim term ambiguity often leveraged by patent plaintiffs and result in early particularization of litigation issues (the second of Chief Judge Rader’s outlined steps).
The patent system has served us well, boosting our innovation economy and in turn our standard of living. The patent system is not broken, but it can certainly be improved. I commend Chief Judge Rader’s leadership by calling out patent litigation abuse and reforms to address it. Let’s not stop there. We can and should do more – the resultant improvement to the system benefits us all.