In particular, last week lawmakers continued to consider modifying the original Congress’s patent legislation into a form less congenial to abuse by so-called “patent trolls,” also known as “patent assertion entities” (PAEs).
During a House Judiciary Committee hearing, Patent Office Director Michelle Lee expressed some support for the Innovation Act, an anti-“troll” measure that easily passed the House in late 2013, died in the Senate, and saw new life in February 2015 when Rep. Bob Goodlatte (R-VA), the House Judiciary Chairman, reintroduced it.
Director Lee emphasized that any successful legislation “must achieve a balance, preventing abuse while ensuring that any patent owner, large or small, will be able to enforce a patent that is valid and infringed.”
Among other things, Lee suggested that lawmakers rein in aspects of the Innovation Act’s fee-shifting provision, which would require losing parties in litigation to reimburse the winners’ attorney fees (a section I’ve also argued goes too far). Specifically, she cautioned that “passive investors” in a company held liable for its adversary’s fees shouldn’t be required to contribute. “If they don’t control or direct the litigation,” Lee told the panel, “you need to be careful not to expose them to liability.”
Hearings on the Innovation Act and other measures continued throughout the week and are expected to resume periodically en route to markup.
In the meantime, Rep. Michael Burgess (R-TX), chairman of the Commerce, Manufacturing, and Trade subcommittee of the House Energy & Commerce Committee, has reintroduced the Targeting Rogue and Opaque Letters (“TROL”) Act and scheduled a hearing for today, April 16.
“The misuse of patents as a business strategy is a massive drag on the economy to the tune of tens of billions of dollars a year,” Burgess observed. He believes the TROL Act “offers a balanced solution to this pressing problem, targeting bad actors without compromising a strong patent system that is necessary to protect innovation and job growth.”
Burgess’s bill would categorize “certain bad faith communications in connection with the assertion of a United States patent” as “unfair or deceptive acts or practices” warranting severe sanction. It would punish any person or company purporting to possess the right to a patent or patents who falsely and in bad faith indicates in written communications that: the patent has been or will be litigated in court against the recipient or others, or that the patent is valid or enforceable, or has not yet expired.
The letter-sender would also run afoul of the measure if it failed to identify the actual owner of the patent (and any parent entities), the patent itself, or how the recipient’s product supposedly infringes the patent.
Any violation would be deemed an unfair or deceptive business practice under the Federal Trade Commission Act and would trigger FTC scrutiny, enforcement, and, ultimately, punishment under the FTCA.
For the full story: http://www.techpolicydaily.com/technology/patent-reform-grinds-forward/?utm_source=newsletter&utm_medium=paramount&utm_campaign=cict