New Anti-Patent Trolling Bill Released
from the a-good-start dept
Earlier this year, about half a dozen different bills were introduced in Congress trying to tame the patent troll problem. Now, Rep. Bob Goodlatte has basically strung together a bunch of the different ideas from those earlier proposed bills to create The Innovation Act of 2013, which includes a bunch of ideas to limit patent trolls. It’s a good bill that will definitely do plenty to stop some of the most egregious forms of patent trolling, though it doesn’t go nearly far enough in terms of stopping bad patents from being issued in the first place, or allowing all kinds of companies (trolls or not) to attack other innovators. The bill is definitely a step in the right direction — and it’s impressive that Congress really did realize that patent trolling was such a problem, after pretending that it had solved all of the patent system ills a couple years ago with the America Invents Act, which was close to useless.
Among the good things in this bill: (1) in cases of really egregious behavior, the bill will allow for awarding attorneys’ fees to the prevailing party. So in cases where a patent troll files a bogus lawsuit as part of the shakedown, the defendant can get attorneys’ fees. That’s helpful, but it will still require years of fighting and expenses to get to that point. (2) In the lawsuit, suing companies actually have to explain what was infringed and how. I know, it seems crazy that this wasn’t a requirement before, but welcome to the insanity that is our patent system. (3) Limiting the discovery process. Discovery can be incredibly expensive, and trolls have leveraged that to burden innovative companies that they’re suing. This bill tries to limit the power to abuse discovery, though there are always loopholes. (4) “Transparency of ownership.” Basically, patent trolls won’t be able to hide behind shell companies as easily as before. (5) It tries to (somewhat) limit the ability of patent trolls to go after end consumers of products (such as the troll claiming it could sue all WiFi users) or the troll going after anyone using a networked printer/scanner. All it really does here is allow the consumers to continue using the products while other stuff gets resolved if the troll has also sued the manufacturer. This means, if it’s more lucrative, trolls will just avoid suing the manufacturer and go after the users. Again, this protection is not complete, but it’s a step forward.
All of these are useful and positive steps, but won’t stop trolling. It will, hopefully, limit the most egregious cases, but we’ve certainly seen that trolls can get creative in how they troll, so I imagine that, if this becomes law, we’ll start to see new methods pop up quickly. That said, it’s still a long way from actually passing. The fact that the bill is being introduced with a wide variety of powerful backers — Reps. Bob Goodlatte, Pete DeFazio, Zoe Lofgren, Jason Chaffetz, Howard Coble, Anna Eshoo, Lamar Smith, Tom Marino and George Holding — means that the bill actually has a better chance than most of actually getting to the floor and passing. But there will be others fighting against it, and a similar bill needs to get through the Senate as well, though that seems likely. If it can get through Congress, it seems like that the administration will support it, but that’s not definite.
Honestly, the best thing about this is that, contrary to our expectations after the America Invents Act passed, patent trolling behavior became so egregious that Congress was actually willing to step back into this issue. That suggests that if the activity does continue, Congress will actually address it at some point. That’s a good thing, and as EFF notes, we have the patent trolls to thank for that.