June 14, 2013
Last week, the White House released its agenda of legislative priorities and executive actions on high-tech patent issues. It was accompanied by a report, Patent Assertion and U.S. Innovation, that builds on recent research and makes the case for the agenda. The agenda is attributed to the White House Task Force on High-Tech Patent Issues, while the report is a joint product of the Council of Economic Advisers (CEA), the National Economic Council (NEC), and the Office of Science & Technology Policy (OSTP). Like the various proposals brewing in Congress, it is directed at patent assertion entities (PAEs), more commonly known as trolls. But with seven legislative measures, five executive actions, and the report, the White House agenda is distinctly ambitious.
It is quite unusual for the White House to assume leadership on patent reform. To my memory, the only comparable initiative was the President’s Commission on the Patent System of 1965-1966. At President Johnson’s request, the Commission took a broad look at the patent system in a time of technological change and issued its report as “‘To Promote the Progress of …Useful Arts’ in an Era of Exploding Technology.” The report made 35 thoughtful recommendations (including recommending against software patents) but got little political traction beyond the administration. As noted by Commission member James Birkenstock (IBM):
The commission members were greatly pleased that the Johnson administration accepted all of its recommendations. Regrettably, only a few were enacted into law due to the highly influential Patent Law Bar that opposed most of the recommendations.
The Obama administration’s initiative is narrower, more targeted, and well-documented. The report not only examines the troll problem in depth but links it to fundamental problems of functional claiming in software, uncertainty in the face of massive patenting, and the overshadowing of R&D by strategic patent acquisition and assertion. The report recognizes that it is not just a problem of restraining and sanctioning a few bad actors.