18 States Now Have Laws to Try to Stop Patent Trolls

As of two days ago, Illinois became the 18th state with a law prohibiting bad faith assertions of patent infringement. (That is, fraudulent demand letters.) It seems that if Congress won’t act, the states will do whatever they can (which is limited) to deal with patent trolls.

Let’s hope that the next session of Congress will produce real help for businesses beleaguered by patent trolls.

NB: We keep the Patent Progress Guide to State Patent Reform Legislation updated, so keep checking back!

FTC 6(b) Study on Patent Trolls Cleared by OMB, It’s Time to Serve Subpoenas (Updated)

Update (8/26/2014): CCIA’s CEO, Ed Black, published an op-ed in the Huffington Post on this subject.

This past Friday, the FTC received OMB approval to go ahead with the 6(b) study on patent assertion entities. It’s been a long time coming, but the FTC did a thorough job of gathering feedback from everyone with an interest in the study. The questionnaires are solid.

Now that the last hurdle has been cleared, the FTC should move quickly to serve subpoenas.

We know that the patent troll problem is getting worse. (See here and here.) But one of the big barriers to Congressional action has been the (false) claim that we don’t have enough information about the scope of the problem. The results of the 6(b) study should silence that claim. (Not that we need to wait. As FTC Commissioner Julie Brill said, tackling patent trolls needs a multi-faceted approach, and there’s no reason for Congress to delay action.)

We’re also looking forward to seeing what the FTC learns about patent privateering. The study could be our first real chance to expose the tactics of companies who have been quietly using patent trolls to do their dirty work.

There’s no time to waste. Patent trolls won’t stop on their own, and we need all the ammunition we can get.

Launch subpoenas!

 

The PTO’s Culture of Poor Quality Patents

There have been a few scandals at the USPTO in recent weeks. First was a report of nepotism in hiring on the trademark side of the PTO. Then, there were reports that some paralegals working for the Patent Trial and Appeals Board were basically being paid to goof off.

This week, the Washington Post reported that not only is the USPTO’s telework program being abused, but the USPTO tried to cover up the problem:

Some of the 8,300 patent examiners, about half of whom work from home full time, repeatedly lied about the hours they were putting in, and many were receiving bonuses for work they didn’t do. And when supervisors had evidence of fraud and asked to have the employee’s computer records pulled, they were rebuffed by top agency officials, ensuring that few cheaters were disciplined, investigators found.

Disclosure: my wife is a patent examiner who teleworks. This post is based entirely on publicly available information.

The problem, I think, is not simply a bunch of crooked people trying to get away with something. There is clearly a cultural problem at the USPTO.

Patent examiners are measured based on the number of applications they process (“production”) and how quickly they get to applications that are sitting in their dockets. Examiners can also be penalized based on errors that are found in their work, although that is a smaller component of their performance measurement than production.

(more…)

Merkley and Four Other Senators Call for PTO to Improve Patent Quality

Well, this is good to see: Senator Jeff Merkley (D-OR), joined by Senator Mark Begich (D-AK), Senator Martin Heinrich (D-NM), Senator Tom Udall (D-NM) and Senator Mark Warner (D-VA), sent a letter yesterday to the Department of Commerce about patent quality.

The letter urges a few measures to improve patent quality. Here are the highlights:

  1. Review performance metrics to make sure that they emphasize quality over quantity. (There are problems with some of the metrics the PTO currently uses, as I’ll be writing about soon.)
  2. Direct examiners to make sure that the application record is clear and thorough.
  3. Assess the new guidelines and instructions on functional claiming to verify that they’re effective.

These are all excellent ideas. And it’s great that Senators are taking a direct interest in improving patent quality. They clearly get it.

The PTO has shown its willingness to listen, so the conditions for seeing real improvement in patent quality are definitely promising.

Apple and Samsung Begin to Wind Down the Smartphone Wars

As we’ve written a number of times (e.g., here, here, and here), nothing good has come out of the war between Apple and Samsung. Both companies have spent millions and neither has much to show for it. The big losers, of course, have been consumers, who could be enjoying better products: products that could have been built using the resources wasted on patent infringement lawsuits.

Now it seems that Apple is beginning to recognize this and step back from its position of “thermonuclear war” on Android. Apple and Samsung have reportedly agreed to drop all of their cases against each other outside the U.S.

Of course that still leaves several U.S. cases pending. But it’s a good start.

Let’s hope the parties can settle the rest of their disputes soon and get back to making more cool stuff that we can buy.