The optimism around curbing the excesses of so-called Patent Trolls surrounding a pair of eminently reasonable Supreme Court decisions last month is fading fast after Congressional leaders tabled plans to bring a vote on patent reform out of committee and onto the Senate floor.
While the court cases weakened patent trolls’ ability to harass their targets by filing spurious suits without consequence (the decisions make it easier for trial courts to make the trolls pay the legal costs of failed suits), they’re not enough to resolve the patent wars on their own. Patent Transparency and Improvements Act. But whenSenate Judiciary Committee Chairman Patrick Leahy pulled it from his panel’s agenda because all the parties involved hadn’t reached a compromise, observers concluded that the effort was dead in the water, at least for now.
That would take legislation, and there had been hope that Congress would address the issue with the
According to Leahy’s statement, as reported by Politico:
I have said all along that we needed broad bipartisan support to get a bill through the Senate. “Regrettably, competing companies on both sides of this issue refused to come to agreement on how to achieve that goal.
That’s just backward. If there was consensus among the various parties, there wouldn’t be a need for this legislation. The problem is that the various sides are dead set against each other: patent trolls, inventors, large enterprises, startups and small businesses all have their own perspectives and goals, and there’s no way they’re going to sort it out on their own. any of these constituencies, so it avoids the issue and does nothing. (Many reports say Sen. Majority Leader Harry Reid pressured Leahy to pull the bill.)
That’s why the government needs to step in with patent-reform legislation, and why waiting for a compromise to emerge on its own comes down to cowardice. Congress isn’t willing to anger
And so things just keep getting worse. Time magazine warns that:
Patent troll lawsuits have tripled in the last two years, rising from 29% of all infringement suits to 62% of all infringement suits, according to a recent study by the National Economic Council and the Council of Economic Advisers.
This outcome is not ultimately too surprising, as the barriers to patent reform are many. What is surprising is that several states are stepping up their legislative efforts to fight the trolls. According to the Wall Street Journal, "Oklahoma became the 12th state to enact legislation aimed at reining in so-called ‘patent trolls,’” from sending “so-called demand letters to companies seeking royalties and threatening legal action for patent infringement.” The laws often require “clear evidence that a company has infringed on a patent, rather than vague accusations,” the Journal said. In addition, some of the laws let companies sue the trolls in State courts, though most Patent Assertion Entities (trolls) don’t have many assets of their own.
The problem with a States-first approach is that it creates a patchwork of laws and procedures that savvy lawyers can work to their advantage. All a troll has to do is find a favorable jurisdiction or judge, and progress in other regions becomes meaningless.
Case in point: U.S. Court of Appeals for the Federal Circuit Judge Randall R. Rader recently sent a virtual love letter to Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP in Silicon Valley, noting that, "I was really proud to be your friend.” Rader has since resigned over the ethical lapse, but the kerfuffle makes the need for clear, national standards even more compelling.