Chuck Schumer To Introduce Patent Reform Bill To Make It Cheaper To Fight Back Against Patent Trolls

from the a-step-forward dept

Back during the fight for the America Invents Act -- the big patent reform effort from a couple years ago -- Senator Chuck Schumer was able to add in an amendment that made it easier to get the USPTO to review business method patents. As we noted at the time, this amendment also effectively killed off some specific financial patents. This was a good step, though we wondered why it was limited just to business method patents. The general answer that we got back from those involved in the process was that this would be a "test bed." That test bed is now known as Section 18 of the America Invents Act, which makes it easier for those sued to get the patent reviewed by the USPTO, and also makes it more likely that a court will put a lawsuit on hold while the USPTO reviews the patent. Given how often re-exams by the USPTO lead to claims being rejected, this process can certainly help dump some really bad patents before a defendant has to go through an incredibly pricey court case (and appeals and such).

It's now being reported that Schumer is set to introduce a new bill that will expand Section 18 to cover technology patents, rather than just limiting it to business method patents (the more cynical among you will note the rapid growth of New York's tech sector as a reason for this expansion). This is definitely a big step in the right direction. If something like this was also combined with the SHIELD Act, which shifts fees to the trolls for bogus patent lawsuits, it would really help limit some of the most egregious activities of trolls.

That said, this is only one step. There are some limitations and oddities within Section 18 which may have been necessary to get it into law, but which also limit the overall effectiveness of the bill against trolls. While we're extremely encouraged that Congress and other parts of the federal government appear to finally be taking the issue of patent trolling seriously, there is still much more to be done. Thankfully, there are indications from a bunch of Senators and Representatives that they know this is a problem and they intend to do something to fix it. Kudos to Senator Schumer for jumping in with this fix, and we look forward to more efforts to fix our broken patent system and to limit innovation-hindering patent trolling.


Reader Comments (rss)

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    Vidiot (profile), May 1st, 2013 @ 8:34am

    Innovation defended... treasure the moment

    "So shines a good deed in a naughty world..."

    (Merchant of Venice)

     

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    Anonymous Coward, May 1st, 2013 @ 8:34am

    well done to Senator Schumer and here's hoping he can make a serious difference. what would also be extremely helpful would be something that made false take downs and copyright abuses financially painful and socially negative to those that continue to follow that road. i suppose starting with this is better than nothing and there are no entertainment industries so heavily involved in patents. that will mean the 'campaign contributions' wont stop just yet!

     

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    Anonymous Coward, May 1st, 2013 @ 9:04am

    "there are indications from a bunch of Senators and Representatives that they know this is a problem and they intend to do something to fix it."

    Translation: They know the people aren't happy about this and they know they are starting to have little choice but to do something about it in fear of public and voter retaliation.

    Politicians don't see this as a 'problem'. Not to them. They see this as an method for them to get campaign contributions and revolving door favors. That it hurts everyone else is something they've known a long time ago but just never cared. Politicians are mostly only self interested.

     

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    Anonymous Coward, May 1st, 2013 @ 10:19am

    Others in the senate want to act slower

    During the confirmation hearing for Raymond T Chen (to the Federal Circuit), Senator Hirono asked him about Patent Trolls.
    Chen made it clear he understood the imbalance of costs that makes patent trolling possible. However, he hedged saying that he's not familiar enough with the size of the problem.

    Hirono latched on to that and thanked him for saying that we don't have enough information about the scope of the issue to address the problem through legislation (which isn't exactly what he said, but we often hear what we want to hear). I wish she would look at the Boston University study that the Barnes and Nobles highlighted in their submission to the FTC and DOJ. It gives a pretty good idea of the scope of the problem.

     

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    Innovator, May 1st, 2013 @ 5:34pm

    How come we only talk about the trolls but no one mentions the 800lb gorilla trampling over small innovators and their government issue rights? Until we address their blatant strategy to 'kill the patent holder with court fees' everything else should be off the table..oh, right, small patent holders don't have lobbying dollars..

     

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    Anonymous Coward, May 1st, 2013 @ 9:24pm

    "Given how often re-exams by the USPTO lead to claims being rejected."

    Of course, but rejecting some claims on the basis of newly cited art is far removed from an entire patent being invalidated. To be accurate, some claims are initially rejected, they are amended if necessary to distinguish over the cited art, and the patents undergoing reexam are by far upheld as claiming allowable subject matter. Similarly, many claims are upheld without any amendment whatsoever. Reexam is not a panacea, nor is the newly created post-issue proceeding.

     

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    horse with no name, May 2nd, 2013 @ 12:25am

    Chuck Schumer obviously reads Techdirt, allowing him to be so wilfully blind. Curse you, Chuck Schumer!

     

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    staff, May 2nd, 2013 @ 7:24am

    more dissembling by Masnick

    'Chuck Schumer To Introduce Patent Reform Bill To Make It Cheaper To Fight Back Against Patent Trolls'

    his definition of ‘Patent Trolls’: small businesses who assert their patents against his giant multinational business campaign donors

    Just because they call it “reform” doesn’t mean it is.

    “patent reform”…America Invents Act, vers 1.0, 2.0, 3.0…

    “This is not a patent reform bill” Senator Maria Cantwell (D-WA) complained, despite other democrats praising the overhaul. “This is a big corporation patent giveaway that tramples on the right of small inventors.”

    Senator Cantwell is right. All these bills do is legalize theft. Just because they call it “reform” doesn’t mean it is. The paid puppets of banks, huge multinationals, and China continue to brain wash and bankrupt America.

    They should have called these bills the America STOPS Inventing Act or ASIA, because that’s where they’re sending all our jobs.

    The patent bill (vers 2, 3, etc) is nothing less than another monumental federal giveaway for banks, huge multinationals, and China and an off shoring job killing nightmare for America. Even the leading patent expert in China has stated the bill will help them steal our inventions. Congress passed it and Obama signed it. Who are they working for??

    Patent reform is a fraud on America. Congress and Obama are both to blame. This bill will not do what they claim it will. What it will do is help large multinational corporations maintain their monopolies by robbing and destroying their small entity and startup competitors (so it will do exactly what the large multinationals paid for) and with them the jobs they would have created. They have already damaged the US patent system so that property rights are teetering on lawlessness. This bill will only make it harder and more expensive for small firms to get and enforce their patents. Without patents we cant get funded. In this way large firms are able to play king of the hill and keep their small competitors from reaching the top as they have. Yet small entities create the lion’s share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” This bill is a wholesale destroyer of US jobs. Those wishing to help fight this bill should contact us as below.

    Small entities and inventors have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors. Congress and Obama tinkering with patent law while gagging inventors is like a surgeon operating before examining the patient.

    Those wishing to help fight big business giveaways and set America on a course for sustainable prosperity, not large corporation lobbied poverty, should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    Please see http://truereform.piausa.org/default.html for a different/opposing view on patent reform.
    http://docs.piausa.org/
    http://washingtonexaminer.com/patent-reform-like-most-reforms-in-t he-end-benefits-the-biggest-guys-with-the-best-lobbyists/article/2524033
    http://www.hoover.org/publ ications/defining-ideas/article/142741

     

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    jimh338 (profile), May 2nd, 2013 @ 3:33pm

    So-called "Reform"

    The intent of patenting is not exclusively to make or sell a product. What it does is document that someone has invented a way to do so. An additional reason for filing for a patent is for the legal position to license someone else to make or sell the product.

    When a company decides to introduce a new product or use a new method to create it, that company is responsible for verifying that it is not infringing on someone else's patent. What we are calling "trolling" is, at best, the result of slipshod patent searches by incompetents.

    In a worst case scenario, though, the company is well aware that it is infringing, but decides to perform a "risk/benefit analysis" to decide whether it'll cost more to obtain a license or to ignore the existence of the patent and pay out the likely lawsuit settlement.

    I have no inside information, but I would suspect intentional patent infringement is more likely than incompetence. If I am correct, the only way to reduce the number of incidents is to increase the judgment given to plaintiffs - to ensure that the risk of infringing exceeds the benefit. Even if I am wrong, increasing the payments would motivate the companies guilty of "innocent infraction" to hire people who are more diligent in their duties when performing patent searches.

    Bottom line: Increasing the amount awarded to plaintiffs in patent infringement cases will reduce the number of lawsuits, regardless of the root cause.

     

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