On the afternoon of Wednesday, November 29th, the U.S. Senate Committee on the Judiciary held a hearing to consider the nomination of four political appointees from the Trump Administration. Included among the days’ nominees was Andrei Iancu, President Trump’s selection to serve as Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office. Though the nomination hearing was brief and Iancu’s remarks were very measured, there would be reason for patent owners to think that a more balanced playing field at the USPTO could start to form should Iancu be confirmed as Director of the agency.
Patent trolls – as well as calls for changes to the law to prevent them – date back to at least the 1800’s. A look at their history suggests that they have more to do with fluidity in the definition of patentable subject matter than any unique feature of a particular class of inventions… A change in a fundamental definition of what comprised patentable subject matter, and that change brought a major building block of commerce into the ambit of the patent system. In the age of the sharks, the farm remained the core of the U.S. economy, driving a gold rush of new patents covering every element of the farming process. Such a rush also encourages the formation of patent thickets, as speculators scramble for any potentially protectable chunk of the market. The same phenomenon drove the development of modern tech and software patents. In the aftermath of State Street, once again the market found that the machinery that undergirded the economy was suddenly open to being patented, leading to a similar gold rush.
The HuffPost recently published a piece authored by Massachusetts State Senator Eric P. Lesser (D), which is titled Patent Trolls Are Trolling Startups In Massachusetts – And We Need To Change That. The piece attempts to engage readers by taking a situation from the HBO sitcom Silicon Valley and apply it to real world business activities currently ongoing within the state of Massachusetts. However, critical analysis of Lesser’s article indicates glaring flaws with his logic in a way that makes it look like Lesser is more interested in following a false narrative in service to patent infringing interests than he is in supporting Constitutionally-protected property rights.
The patent troll problem has always been a creation of large operating companies. They obtained dubious, highly questionable patents. These low quality patents were then sold to other entities so they could specifically and intentionally be used to sue other large operating companies… Post grant challenges were created in the AIA for the express purpose of getting rid of these low quality patents. The large operating companies that so desperately lobbied for new procedures to challenge these low quality patents instead continue to pay extortion-like settlements to patent trolls who apparently continue to sue alleging infringement of low quality patents.
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.”