Goodlatte pledges to pursue patent litigation reform, copyright reform in 115th Congress

By Gene Quinn
February 1, 2017

Congressman Bob Goodlatte (R-VA).

Congressman Bob Goodlatte (R-VA).

Congressman Bob Goodlatte (R-VA) holds the Chairmanship of the House Judiciary Committee, and as such will wield a great deal of power over any intellectual property related legislative reforms that will occur during the 115th Congress. Earlier today Goodlatte unveiled his agenda for the 115th Congress. Not surprisingly, a portion of his agenda includes additional patent litigation reform in order to address what he characterizes as “truly frivolous lawsuits,” as well as reforms to keep America’s patent laws up to date and copyright reforms to help ensure “America’s global leadership in creativity and innovation continues.”

Specifically relating to intellectual property, Goodlatte explained his agenda as follows:

To make America more competitive again we must also make our legal system more efficient and fair. America’s legal system is considered the costliest in the world. In fact, one study found that liability costs in the United States are more than 2.5 times that of Eurozone countries.

While we must protect the ability of Americans to seek redress through the courts when they are truly damaged or injured, there are measures we can take to reduce the wasteful burden that truly frivolous lawsuits impose on American competitiveness.  Like excessive regulation, frivolous lawsuits are a drain on businesses, entrepreneurs, innovators, and hardworking Americans. We can and must do better.

Over the next Congress, the House Judiciary Committee plans to reform the litigation system by seeking to reduce frivolous lawsuits, making it harder for trial lawyers to game the system, and improving protections for consumers and small businesses.

We’ll also work on reforms to discourage abusive patent litigation and keep U.S. patent laws up to date. Collectively, these reforms will help alleviate the wasteful burden of unnecessarily expensive litigation costs, thereby freeing small businesses to flourish, unleash innovation, and create new jobs for Americans.

The House Judiciary Committee will also build upon its review of our nation’s copyright laws to ensure that America’s global leadership in creativity and innovation continues in the 21st century and beyond.

At the end of 2016, we issued our first bipartisan proposal to ensure the Copyright Office keeps pace in the digital age. Among the reforms contained in our first proposal are granting the Copyright Office autonomy and requiring it to maintain an up-to-date digital, searchable database of all copyrighted works. This proposal is the first of what we intend to be numerous policy proposals to reform aspects of our copyright laws.

The promise of additional patent litigation reform aimed at eradicating frivolous lawsuits will no doubt make for an excellent sound byte on the evening news, after all who could be against the eradication of frivolous lawsuits? The problem, of course, is that technology users have increasingly engaged in systematic and near collusive schemes to efficiently infringe patents. They simply ignore patent rights of innovators, do what they want, and rely on changes to substantive patent law and procedure that enable them to beat back any enforcement attempts by patent owners. For those limited circumstances where they are unable to play the war of attrition to defeat patent owners they simply resort to the claim that any lawsuit they face is a frivolous lawsuit. In fact, last year Congressman Darrell Issa (R-CA) interchangeably used the terms patent owners and patent trolls, as if it is black letter doctrine that all patent owners are patent trolls and all patent infringement lawsuits are frivolous.

While Goodlatte will receive high praise in some circles for his efforts to end frivolous lawsuits he is no friend to innovators. Goodlatte not only supported, but also introduced the Innovation Act during the 114th Congress, which would have made significant modifications to U.S. patent laws that were seen as unfavorable by many innovators and independent inventors. My personal view on the Innovation Act is that it would have been a disaster. Of course, the Innovation Act was fought back in both the House and Senate during the 114th Congress, and it seems that it will need to be fought back again during the 115th Congress.

Still, despite Goodlatte’s pledge to move forward on patent litigation reform during the 115th Congress, the facts are likely against him and his allies in Silicon Valley. Even though the popular press, urged on by Silicon Valley elite companies that make up the so-called infringer lobby, continues to write that frivolous patent litigation is a problem, statistics paint a very different picture. Indeed, patent litigation is sharply declining in America, with the number of patent cases dropping 22% in 2016. Indeed, the continuing decline of patent litigation is one of the reasons why the Innovation Act stalled during the 114th Congress. With patent infringement litigation dropping even further since the Innovation Act last failed (see here and here) it seems unlikely to regain the widespread support that the bill enjoyed in the House in December 2013. And even after a vote of 325-91 in favor of the Innovation Act in December 2013, the bill still failed in the Senate. Thus, it seems likely that the Innovation Act is dead, as are any similar widespread attempts to make patent enforcement difficult or impossible. Having said that, however, you can certainly expect Goodlatte and his allies to try.

With respect to copyright reforms, although Goodlatte’s statements are non-specific, from what I am hearing there will be a push to make a number of changes to copyright law and procedure. So when he says there will be “numerous policy proposals to reform aspects of our copyright laws,” he should be taken seriously.

Some copyright issues will likely not be particularly partisan or contentious. There will be an attempt to remove the Copyright Office from the Library of Congress. Members of Congress seem to either be in favor of such an effort or largely ambivalent. This effort could also be coupled with an attempt to remove the Patent and Trademark Office from the Department of Commerce, which would then create a separate Intellectual Property agency, perhaps akin to the Federal Communications Commission. While removing the Copyright Office from the Library of Congress likely won’t be contentious, if attempts are made to remove the Patent and Trademark Office from Commerce that would slow things down considerably. Whether it would be a poison pill remains to be seen.

How far Goodlatte will go with respect to copyright reforms remains unknown, but U.S. copyright laws are in serious need of updating. Attempts to update copyright laws to address rampant copyright infringement in the digital world generally, and on the Internet specifically came to a sudden halt when activists protested and threatened to hijack the Internet. In 2011 and early 2012 it seemed virtually certain that the House of Representatives would pass the Stop Online Piracy Act (SOPA) and the Senate would pass the PROTECT IP Act (PIPA), which would then lead to some sort of compromise between the two bills. In the wake of protests and threats the White House announced they would not support either bill and the wheels fell off attempts to provide copyright owners with better tools to fight rampant copyright infringement. I don’t know that anyone expects something like SOPA or PIPA to resurface, but it seems likely that there will be a push to balance the playing field by tilting the law toward copyright owners and away from infringers who seem to be able to infringe with impunity.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 24 Comments comments. Join the discussion.

  1. Pro Se February 1, 2017 3:23 pm

    I’m trying to figure out where are all the “frivolous litigation” these days? We are no longer in 2010.

    Here’s my story. 3 IPRs filed, judge stay cases. Another IPR filed by another party, the same judge extend stay for the 4th IPR. Stayed defendant files their own IPR and wants the judge to grant a 3rd tier of stay.

    If a patent owner is not absolutely strong in their position in the court these days, it gets thrown out. Otherwise, chain-stayed while defendants get what seems to be an endless opportunity to keep filing IPRs until someone get it right.

  2. Gene Quinn February 1, 2017 3:32 pm

    Pro Se-

    I agree with you. I just don’t see the allegedly frivolous litigation. Chief Judge Michel frequently says when he speaks that in all the years he was on the Federal Circuit he encountered no more than a small handful of frivolous cases. He always points out that just because a party loses doesn’t make the case frivolous. That word — frivolous — has a very specific legal meaning and virtually no situations satisfy the definition. Still, it gets thrown around like it is black letter fact that there are thousands of frivolous patent cases. Simply a lie.

    What is worse, those cases that are bad cases are settled by the infringers. Go figure that! They fight to the death when they infringe good patents and they settle when they dont’ infringe suspect patents. How screwed up is that? That is why I’ve always tended to conclude that the infringer lobby has a malignant symbiosis with those who are the true patent trolls. Infringers need to prop up the bad actors so they can pretend the problem that they create is widespread, which of course it simply is not.

    -Gene

  3. Stephen Curry February 1, 2017 3:40 pm

    During the past 2-4 years, the USPTO representative speaker(s) like(s) to use the term “abusive litigation” by “patent trolls”. you all can google it. so i suppose frivolous litigation sounds less harmful than “abusive” litigation which in turn insinuates child abuse or other abuses that fire up the anger of the public against patent holders.

  4. Paul Morinville February 1, 2017 5:25 pm

    I asked him at this meeting that since the AIA was devastating to inventors if he was going to bring inventors in and allow them to testify for any new legislation. He avoided the question and said that they are trying to protect inventors and startups from frivolous litigation.

    So, Pro Se, that litigation against you is not really frivolous after all, or he would be protecting you from it.

  5. Bemused February 1, 2017 9:06 pm

    Isn’t this business as usual for Goodlatte, Issa, et al? Raise the patent reform flag and watch the efficient infringer lobby campaign contributions roll in followed by the anti-reform/pro-patent coalition campaign contributions. (Sigh) Politics and politicians suck.

  6. Night Writer February 1, 2017 9:25 pm

    He looks like a big fat politician eating Google bucks.

  7. Night Writer February 1, 2017 9:31 pm

    What we need to do is set up a more effect lobbying group and then target people like this for removal and target him for disclosures to get an idea of how many Google bucks he has eaten.

  8. IPdude February 1, 2017 9:42 pm

    Night Writer @6

    Big Pharma collectively has a bigger market cap than Google. They were seemingly promised big incentives under Obama Care (that did not materialize) in order to go along with AIA. It not only bit them in the form of invalidations but they also lost their grip on Congress. Google outsmarted Big Pharma. Let’s hope the meeting they had with Trump, coupled with the icy relationship Trump has with Google, will sway the momentum back in our favor. Not holding my breath.

  9. Frank Lukasik February 2, 2017 6:54 am

    The first thing to change is the “First-To-File” and go back to the Constitutional “First-To-Invent”.
    The second thing is to stop expiring seventeen year Patents for non-payment of Maintenance Fees.
    (Lucree v. U.S.)

  10. Night Writer February 2, 2017 6:59 am

    http://money.cnn.com/2017/02/01/technology/zenimax-oculus-lawsuit-500-million/index.html?iid=ob_homepage_tech_pool

    You see Gene this is why trade secrets may be the end of patents. You have to play it out after years of trade secret laws getting stronger.

  11. Night Writer February 2, 2017 7:11 am

    @7: Actually, I am serious. Probably the only way to stop this is to target him for removal. I have had experience with this at a state level. One legislator held up a bill for many years while taking large sums of money from the pharma industry. It wasn’t until he was targeted that he allowed the bill to go to the floor for a vote. (And he held up the bill despite the Governor, and a large majority of the legislators all saying publicly they would vote for it.)

    He NEEDS to be targeted for removal. The best thing any of us could do is give to his opponents in his district.

  12. Night Writer February 2, 2017 12:18 pm

    Look at this where he got his money:
    Two largest contributors:

    Google 18,100 company, and 8,100 individuals ion the company.
    Facebook 15,400 company, and 5,400 individuals in the company

    Bob is bought and paid for by Google. It looks like Google Bucks Bob lives in a heavily Republican district so the only way to get at him is with a primary.

    But seriously people. You want to help patents. Any ideas? How about a kick-starter campaign to oust Google Bucks Bob?

  13. angry dude February 2, 2017 12:59 pm

    Even a little “safe-harbor” loophole to avoid Rule 11 sanctions is now gone.

    Nowadays unless you do everything by the book and don’t make a single mistake, they’ll charge you with Rule 11 sanctions (which might be higher than damages awarded…)

  14. angry dude February 2, 2017 1:05 pm

    Night Writer @10

    I read the verdict

    The found no convincing evidence of trade secret misappropriation,
    BUT found defendant guilty of copyright infringement …. (???) GO Figure….

    Is using someone else’s code in your product a trade secret misappropriation by default too ???

  15. xtian February 2, 2017 1:30 pm

    IP Dude @8

    Spot on. As one from that industry, I can tell you we got taken to the showers.

  16. Paul Morinville February 2, 2017 2:47 pm

    I started working over his district a while back. I ended up focusing on Issa instead. He remains top on my list. I am willing to help and participate with anyone to oust him in a primary. Please contact me if you are actually interested in doing something and not just complaining.

  17. Night Writer February 2, 2017 3:43 pm

    @14 angry dude: the point with the trade secret part is that it does not take much imagination to see how a company could lock down an employee with stronger trade secret laws. Moreover, imagine if a company like Google created their own private programming languages and environments and declared them to be trade secrets, and then if you left you would have to learn a completely new set of environments and programming languages. Could make it impossible to switch companies. Moreover, it does not take much imagination to think about how if you can lock down people that you can start to hide the tech too.

  18. EG February 2, 2017 4:24 pm

    To all:

    I’m a registered Republican, and what Goodlatte proposes in this supposed “litigation reform” legislation is disingenuous, nonsensical, based upon a completely false narrative, and serves only to make the multinational Goliaths of “efficient infringement” stronger, and the true Davids of innovation weaker. He, as well as Issa NEED TO GO IMMEDIATELY!

  19. staff February 2, 2017 6:02 pm

    ‘truly frivolous lawsuits’

    Infringers definition: whenever we are sued for invention theft

    Large multinational infringers have so mislead Congress that they cant distinguish the robbers from the robbed. That’s how they con Congress into passing law that only legalizes theft. There’s a reason why a former President once described a big business delegate as ‘more slippery than an eel and more crooked than a…’.

    But it’s about property rights. Do any of us truly own our property anymore, or will government continue to allow big business to simply take whatever they want as they are now free to do? Meanwhile, those same multinationals ship more and more American jobs offshore. When they cant export jobs they import workers. That in large measure explains why American cant find a good paying full time job. Is the American dream dead?

    For our position and the changes we advocate (the rest of the truth) to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com
    or, contact us at aifj@mail.com

  20. Night Writer February 3, 2017 6:35 am

    EG: I agree he needs to go and so does Issa. One thing is that to accomplish this we need money. And the other thing we need is for the IP community to understand how people like this are purchased by big corporations on these issues.

    I wonder if some new age way wouldn’t be the answer. I think what we need is a super PAC that is focused on weeding out the Google Bucks purchased legislators.

  21. EG February 3, 2017 7:01 am

    Hey NW,

    As you can see, this issue with such so-called “patent litigation reform” crosses the political divide our country is currently in. I’m also in agreement with my patent attorney younger brother that Citizens United was a disaster for having a political system that has an “equal vote” unrelated to “$$$.” And as social/political conservative, as well as an “originalist” and generally a “textualist” in terms of my judicial philosophy in interpreting both our Constitution and statutes, the so-called conservative wing of SCOTUS unfortunately bought into this nonsense that corporations (which are entities, not “persons,” created in the state of their incorporation) should be treated as “persons” under our Constitution for the purposes of political campaigns. Until that changes, our political system will continue to be “bought and paid for” by these well-funded lobby groups supported by multi-national Goliaths that owe no allegiance to the America or its people.

  22. Night Writer February 6, 2017 8:05 am

    Hey EG,

    I agree that Citizens United is just horrible. I think —realistically–if patents are to survive then then we have to get a Super PAC going to target the people that are fed by Google bucks.

    We need money.

  23. Paul Morinville February 6, 2017 9:08 am

    We need to identify a primary challenger.

  24. Night Writer February 6, 2017 2:58 pm

    @23: Yes and then solicit funds for him/her if their views on patents are in accordance with what we need.

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