Posts Tagged: "TROL Act"

In a telephone interview, Rep. Stivers noted that, while the AIA was intended as legislation that would make the patent system more efficient, the resulting differences in standards between the PTAB and the district courts have led to a large number of appeals from the PTAB. “Instead of living up to its billing as being more efficient and quicker, the PTAB has become just another stop which is more complicated, more expensive and exactly the opposite of what it was intended to do,” Stivers said. Although he noted that he was not an advocate of getting rid of the IPR process entirely, Stivers felt that the PTAB had to use the same standards of evidence used by district courts. “If that happens, then the PTAB can live up to the potential that it was sold on and you can get the same ruling no matter where you go,” Stivers said.

A $1 trillion a year industry not wanting to pay innovators less than a 1% royalty on the innovations they appropriate (i.e., steal) for their own profits seems like a terrible price to pay given the national security and economic consequences of forfeiting our world leadership to the Europeans and Chinese… Google and Uber are locked in a patent battle over self-driving automobiles, so does that make Google or Uber a patent troll? What about General Electric, Apple, Samsung, Microsoft, Cisco, Oracle, Whirlpool, Kraft Foods, Caterpillar, Seiko Epson, Amgen, Bayer, Genzyme, Sanofi-Aventis, and Honeywell, to name just a few?

”An anecdote is a snapshot, a one-dimensional shard of the big picture. It is lacking in scale, perspective, and data,” authors Steven Levitt and Stephan Dubner write. I was struck by how well the dynamic of anecdote vs. story captures the heated Washington debate over patent legislation we have witnessed in the past few years. The ”patent troll” narrative — fueled by anecdotal tales of mom-and-pop operations snared by fraudulent patent suits and the image of ugly green trolls paraded from the House floor to the White House – became the conventional wisdom on patents almost overnight. The only ”data” offered to support the narrative were compiled from surveys with unscientific methodologies, nonrandomized survey bases and ill-defined notions of a ”troll” that swept in universities, small inventors and anyone who owned a patent but didn’t manufacture, market and distribute the related product.

Yesterday I moderated a Google Hangout on the topic of patent reform, which was sponsored by the Innovation Alliance’s save the inventor campaign. Joining me for the conversation was United States Senator Chris Coons (D-DE), a member of the Senate Judiciary Committee and the driving force behind the STRONG Patents Act, and Congressman Thomas Massie, an inventor and patent owner who is a member of the House Science, Space and Technology Committee. Our wide ranging conversation addressed whether patents promote or inhibit innovation, the most problematic provisions in the pending patent reform bills, whether patent reform is even necessary, and the inevitable reality that a push for patent reform will remain on the agenda for the foreseeable future.

Leading organizations of the Conservative Movement have stepped up their game informing Congress on the philosophical reasons for opposing the Innovation Act and its Senate companion, the PATENT Act. This increased patent bill opposition is directed at Republican lawmakers, the political majority party in both houses of Congress. With House leadership deciding to postpone H.R. 9’s floor debate until at least September, the expanded conservative opposition seems to be effective.

Patent reform is the new normal and we can expect that it will continually be raised in every new Congress for the foreseeable future. Currently there are four serious proposals for patent reform in various stages of consideration in Congress. They are: (1) The Innovation Act; (2) The TROL Act; (3) the STRONG Patents Act; and (4) the PATENT Act. There is also another bill – the Innovation Protection Act – that likely has no chance of passing but which is eminently reasonable. A summary of each of these five bills follows, along with one thing to watch for which could completely upset all predictions.

Yesterday the House Committee on Energy and Commerce voted to approve the Targeting Rogue and Opaque Letters (TROL) Act by a vote of 30-22. Meanwhile, the Protecting American Talent and Entrepreneurship Act (the PATENT Act) was introduced into the Senate. It is now also believed that Congressman Goodlatte may have a hearing or markup with respect to the Innovation Act at some point during the week of May 11th. However, there whispers that the Innovation Act may not be able to make it out of the House Judiciary Committee.

On Monday, May 11, 2015, IPWatchdog will a co-sponsor a roundtable discussion on patent reform. This event will take place at the law offices of McDermott Will & Emery, which is located directly across the street from the U.S. Capitol. Bernie Knight, a partner with McDermott and a former General Counsel to the United States Patent and Trademark Office, will co-moderate the event along with me. We hope you can join us for this discussion.

The TROL Act was introduced during the 113th Congress and as Subcommittee Chairman Congressman Michael Burgess (R-TX) explained it passed the subcommittee with bipartisan support. Still, Burgess explained during his brief opening statement that he believed “the text could be amended narrowly to achieve better protections for recipients of demand letters.” Despite the previous bipartisan support, Ranking Member Congressman Frank Pallone (D-NJ) said that he cannot support the TROL Act as it is written because “it includes problematic language that does not move us forward.”

This year the Innovation Act has been reintroduced, and after some thought that the bill would sail through the House of Representatives without even an additional hearing. The Senate has also held several hearings on patent reform, with a competing view of what patent reform should look like being submitted by Senator Chris Coons in the form of the STRONG Patents Act. The House is also considering more tailored legislation narrowly focusing on demand letters (i.e., the TROL Act), and just recently Senators Tammy Baldwin (D-WI) and David Vitter (R-LA), along with United States Representatives Jim Sensenbrenner (R-WI) and John Conyers, Jr. (D-MI) submitted the Grace Period Restoration Act, which would reinstated the full 12 month grace period that was taken away from inventors as part of the America Invents Act (AIA).

Patent reform is back on the agenda when Congress returns from recess this week. On Tuesday, April 14, 2015, at 2:00 pm ET, the House Judiciary Committee will hold a hearing on H.R. 9, more commonly referred to as the Innovation Act. Then on Thursday, April 16, 2015, at 11:00 am ET, the Commerce, Manufacturing and Trade (CMT) Subcommittee of the House Energy & Commerce Committee will also hold a patent related hearing. The subject of the CMT hearing will be the Targeting Rogue and Opaque Letters Act (TROL Act).

An effort to address bad actors may unnecessarily create significant hurdles for innovators seeking to enforce or license the rights to their own innovations. The fear of unintended consequences requires targeted reform that will specifically address only the abusive behaviors relied upon by the bad actors, namely misleading and fraudulent demand letters. The trick will be to tackle these abusive behaviors that serve no legitimate purpose while not making legitimate business communications impossible. Luckily, it is not difficult to spot fraudulent demand letters and distinguish them from legitimate business inquiries. But will Congress be able to strike the appropriate legislative solution?

Notice letters play an important role in the patent system. Indeed, as the Supreme Court has explained, ”[p]atents would be of little value if infringers of them could not be notified of the consequences of infringement.” Virtue v. Creamery Package Mfg., Co., 227 U.S. 8, 37-38 (1913). Patent law encourages patent holders to take reasonable steps to notify others of existing or pending patent rights and their possible infringement. In some instances, federal patent law requires patent holders to send notice letters to accused infringers to preserve their patent enforcement rights and ability to collect damages. Notice letters and licensing communications can also serve the interests of accused infringers. Once a patent holder has made its rights known, the accused infringer can determine whether to cease the allegedly infringing activities, negotiate a license, or decide to continue its activities based on an assessment of non-infringement or invalidity.