Critics to Congress: Put the brakes on patent bill

A patent reform bill targeting so-called trolls needs more time to mature, several groups say

The U.S. House of Representatives needs to take more time to debate and rewrite a bill targeting so-called patent trolls because several provisions would hurt legitimate patent holders, several critics of the bill said Tuesday.

The House is scheduled to vote on the Innovation Act as soon as this week, but members of the higher education, venture capital and other industries called on Congress to refine the legislation before passing it.

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The Innovation Act is good "for people who don't like patents and would like them all to go away," said John Vaughn, executive vice president of the Association of American Universities. University researchers often invent products that are manufactured by private companies, and the bill, as written, is "going to disrupt this system," he said during a press briefing Tuesday.

The Innovation Act, sponsored by several members of the House Judiciary Committee, including Chairman Bob Goodlatte, a Virginia Republican, targets businesses that use patent licensing and lawsuits as their primary source of revenue. These patent assertion entities (PAEs) are often called patent trolls, but it's difficult to define trolls in a way that protects legitimate inventors who choose not to make products based on their patents.

The bill would require plaintiffs in patent infringement lawsuits to identify the patents and claims infringed in initial court filings, in an effort to reduce complaints about PAEs filing lawsuits with vague patent claims. The bill would also allow judges to require that losing plaintiffs pay defendants' court fees.

In addition, the bill would allow courts to delay massive discovery requests from patent infringement plaintiffs until the patent claims have been interpreted by the court, and it would allow manufacturers and suppliers to intervene in patent litigation against their customers. In recent years, some PAEs have targeted end users of technologies that allegedly infringe their patents in an effort to collect more patent license fees or court awards.

The bill has split the U.S. technology industry, with many large companies and trade groups supporting the bill.

The Electronic Frontier Foundation, a long-time critic of over-broad technology patents, sent out an email blast Monday morning, calling on supporters to contact lawmakers in support of the bill. "The Innovation Act is the best bill yet that stops patent trolls, bad actors who use intimidation and lawsuits to shake down inventors, small companies, and startups," the email said. "That's why thousands of concerned individuals, companies, and organizations have joined us in supporting this bill. Now is the time for meaningful patent reform."

President Barack Obama's administration also voiced support for the bill Monday. "The bill would improve incentives for future innovation while protecting the overall integrity of the patent system," the White House Office of Management and Budget said in a statement.

But critics of the bill said Monday that the House Judiciary Committee has rushed the bill to the House floor. The bill needs fine-tuning, said David Kappos, former director of the U.S. Patent and Trademark Office.

A provision to allow manufacturers to intercede in lawsuits targeting end users of an allegedly patented technology would "damage" the U.S. patent system, Kappos said. The provision is a "well intentioned" effort to protect end users against questionable patent lawsuits, but the wording of the provision needs work, he said.

Todd Dickinson, another former USPTO director who's now executive director of the American Intellectual Property Law Association, agreed. Congress should spend more time on that provision, but some action is needed, he said. "End users who innocently adopt a technology need to be protected," he said.

In addition, the bill "micromanages" the way judges handle patent lawsuits, Dickinson said. Congress shouldn't tell 550-plus district court judges that "one size fits all" in patent litigation, he said.

The provision directing judges to delay discovery requests from patent plaintiffs also needs more work, said Brian Pomper, executive director of the Innovation Alliance, a trade group representing some U.S. tech and manufacturing companies in favor of strong patent protections.

The bill "was put together so quickly," he said.

The sponsors of the bill introduced it on Oct. 23, after months of discussions, and the House Judiciary Committee voted to approve it and send it to the House floor on Nov. 21. Goodlatte has defended the process, saying the committee has debated many of the issues in the bill over a period of years.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.

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