"Patent trolls" – those who obtain patents for products they have no plans to make with an eye to enforcing them after someone else produces the products – aren't going to be plying their trade without consequences for too much longer, if a key lawmaker on the House Judiciary Committee has anything to say about it.
Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Subcommittee on Intellectual Property, has written a Patent Reform Act that would mandate patent rights to the first inventor to file for a patent giving "adequate disclosure" for a claimed invention. The bill would also allow for third-party submission of prior art within six months after the date a patent application is first published.
"Clarifying that the public can submit prior art on a published patent is an important step forward and this bill does a nice job of making that clear," says Electronic Frontier Foundation staff attorney Jason Schultz.
"What this bill is trying to do is recognize that everyone has an interest in getting rid of bad patents," Schultz continues. "And, more and more, people are trying to patent everyday Internet technology, every thing from IM buddy icons to websites to email to streaming media. And whereas in the past there might have been only a handful who even understood the technology behind those patents, nowadays, especially with these Internet technologies, there are thousands who might have good evidence that something isn't new at all, or was obvious to do."
If the prior art provision survives the bill's markup process and goes with the full package to full congressional passage and presidential signature, it could have an impact on a critical point of contention in such cases as the battle between the adult Internet and Acacia Research's streaming media patent package claim, a battle centering around questions involving prior art.
Acacia executive vice president Rob Berman tells AVNOnline.com only that the firm was examining the Smith bill and would have no comment otherwise at this time.
With Rep. Howard Berman (D-California) as his chief co-sponsor, Smith called his bill the no-questions-asked most comprehensive change to American patent law since the original 1952 Patent Act. And he said it's needed to counter serious abuses of current patent law and processes.
"[T]he changes are necessary to bolster the U.S. economy and improve the quality of living for all Americans,” Smith said, announcing the package June 8. “The bill will eliminate legal gamesmanship from the current system that rewards lawsuit abuses over creativity. It will enhance the quality of patents and increase public confidence in their legal integrity.
“This will help individuals and companies obtain seed money for research, commercialize their inventions, grow their businesses, create new jobs, and offer the American public a dazzling array of products and services that make our country the envy of the world,” he continued. “All businesses, small and large, will benefit. All industries directly or indirectly affected by patents, including finance, automotive manufacturing, high-tech, and pharmaceuticals, will profit."
Smith has an ally in the Business Software Alliance, which praised the bill as being critical to the high-tech world. "Patent reform is needed to ensure thriving innovation in software and computer technologies," said BSA chief executive Robert Holleyman about the Smith bill. "The bill is especially important and timely because it addresses the key issues: improving patent quality, making sure U.S. law is consistent with that of other major countries and addressing disruptions caused by excessive litigation.
The Information Technology Industry Council said patent suits in federal courts doubled from 1998 to 2001. Vice president of governmental relations Josh Ackil was quoted as saying that doubling and the current broken patent system equals discouragement to innovation, "and patent trolls are gaming the system."
Some, like MercExchange chief Tom Woolston, say the "patent troll" problem is slightly exaggerated. Woolston is in a battle with online auction kings eBay over eBay's fixed-price auctions and some online payment methods, which Woolston has argued violate a MercExchange patent. EBay won a stay of MercExchange's litigation, which it lost in a lower federal court, until the U.S. Supreme Court decides whether to hear eBay's request to hear the case.
Woolston was quoted as saying the Smith bill would favor big companies.
"If you didn't have your owner's right of patent – which is the ability to stop somebody from using the invention – how can a small company raise money to build an invention?" Woolston said.
