The Search for “Balanced” Patent Reform

The universities and the Innovation Alliance, despite being given nearly everything they’ve asked for, are still calling for “balanced” patent reform. They just sent a letter threatening to oppose any patent reform bill unless, “the provisions on discovery, customer stay, fee shifting and any associated measures, pleadings, and enforcement by the Federal Trade Commission … achieve the appropriate balance.”

Are you kidding me?

Let’s look at some of the changes that have already been made in the interests of “balance”:

  • every provision intended to address patent quality was dropped;
  • the fee-shifting provision was weakened, and exceptions were added;
  • the customer stay provision was weakened;
  • exceptions were added to the heightened pleading requirements;
  • exceptions were added to the provisions to streamline discovery; and
  • the standard for claim construction in inter partes review and post-grant review is being changed to make it more difficult to invalidate bad patents.

Let’s get real here. The universities and the Innovation Alliance are like Lucy playing the football gag on Charlie Brown. They’re simply not going to support any kind of reform that has the slightest chance of costing them money.

Let’s focus on correcting the worst new imbalance, namely the exploding ratio of patent troll suits to all patent suits.

Patent suits vs troll suits

In 2005, there were just over 2700 patent cases filed in total in the United States. In 2012, there were over 2700 patent cases filed by patent trolls in the United States. (See Figure 1 of Cotropia et al.)

That’s right. Patent trolls now file as many lawsuits as the combination of all companies in all industries did less than a decade ago.

That’s a patent system that is already out of balance, and it’s why we need the Senate to pass meaningful patent reform now.