On Sunday, an article in the Washington Post suggested that the Supreme Court’s decision in the Monsanto patent infringement case “creates the theoretical possibility of biotech “patent trolls” who sue farmers for accidentally planting infringing seeds.” It appears that the author may have been confusing the present patent troll problem with a patent mole problem because the theoretical fallout faced by the biotech industry from the Monsanto case seems to have little or nothing in common with the very real patent troll problem technology industry and their customers–including retailers, supermarkets, and financial service companies–have been facing for quite some time now.
The patent troll problem was addressed to some extent back in September 2011 when the Leahy-Smith America Invents Act (AIA) was passed. But even then, we all knew that the AIA only addressed part of the problem and that it was just a matter of time before Congress would need to re-visit the issue and consider new legislative initiatives aimed at addressing the continuing patent troll problem. That time has arrived.
In the near future we expect that leaders in the relevant House and Senate Committees will release draft bills that will begin the process of more formally discussing how best to combat the patent troll plague. But this time around, the discussions aren’t just about how these trolls are adversely affecting the software, hardware and other technology industries. Ordinary end-users–like your neighborhood supermarket–have become part of the conversation as the take-no-prisoners approach of patent trolls has expanded to suing the customers of high tech companies. Legislation is needed to ensure that companies are able to voluntarily intervene in cases where their customers are sued.
This new tactic of suing the users of patented technology rather than the manufacturers represents just one of a litany of patent troll-related problems that needs to be addressed. It is our view that any legislation in this space must include proposals that help combat the patent troll problem at both the litigation and the pre-litigation stage. These proposals may include legislation to address:
- The asymmetry in patent discovery
- The problem of identifying the real-party-in-interest during litigation – and even more importantly during prosecution of the patent application as well as any grant or conveyance of the patent
- The awarding of court costs and attorneys’ fees in patent cases in a manner that will effectively impede a troll’s ability to bring unwarranted infringement suits. The first step in ensuring such effectiveness is inclusion of a bond requirement that prevents a patent troll from circumventing an attorneys’ fee award by setting themselves up to be judgment proof
- The need for heightened pleading requirements with enough specificity regarding the product(s) and/or feature(s) that satisfy the claim limitations
These are just a few of the concepts that need to be fully aired and discussed. We would like to see other concepts on the table – concepts relating to damages, willfulness and venue – which in our view still need to be addressed. But whatever measures are considered, they need to be effective. It is essential that those proposals are considered, and move forward–not watered down.
At this early stage of the discussions we see no reason to restrict the dialogue to consideration of a few proposals. Instead, we favor the “let a thousand flowers bloom” approach – so long as those flowers don’t come from Monsanto seeds.
Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.