The digital entertainment and tech industries have long been victims of patent trolling. Whole companies have managed to stay afloat not through providing a desirable service or product, but through highly aggressive patent trolling. In the digital age, it’s a become easier to patent troll, given that there are now a whole new realm of products and services to attack, and software patents that are applicable across multiple industries. Patent trolling doesn’t help anyone other than the trolls, and that’s why the Obama administration has a new plan to put it to rest.
Often times, a company (or shell company) will be built around a group of vague patents that resemble a successful product. Most of the time, to anyone with a reasonable amount of common sense, these patents are not the successful product the patent troll is targeting, nor were the patents ever intended to become anything in the first place. Essentially, they’re like blank bullets — they make a bunch of scary noises, but ultimately don’t do anything. If the shooter intended to do something with the gun in the first place, he wouldn’t have had blanks loaded in the chamber. Aside from simply being an annoyance, the reason why large companies don’t sit back, laugh, and swat the tiny patent trolling fly away is because, like blank bullets, it looks like a legitimate threat until the shooter pulls that trigger and nothing much happens.
While the US government most likely can’t eradicate patent trolling, it hopes its five-step plan will make it significantly harder for the act to happen. First, the Obama administration will tell the Patent and Trademark Office to create rules that will force patent holders to reveal the owner of a patent. If a shell company is suing over a patent, but the shell doesn’t even know who owns the patent it’s using as the basis for the lawsuit, that would discredit the case. Second, the administration will attempt to convince Congress to pass laws that would penalize a patent troll if courts found the suit to be abusive in some way — attempting to deter frivolous suits with fear of punishment.
Thirdly, the administration will also attempt to cut down on the use of the International Trade Commission (ITC) to settle disputes in favor of federal courts. The ITC has been used more frequently lately because a patent dispute moves more quickly through the commission than it does through standard courts. This means patent trolls don’t have to spend too much time with their frivolity, but also that the process might not be as tight as in a federal court, thus potentially increasing a troll’s chances at favorably settling a dispute. Also, President Obama will also order a review of the current ITC policies in an attempt to possibly spruce up the body’s practices.
Lastly, along with attempting to clean up the ITC a bit and creating punishments for frivolous patent disputes, the administration will also ask that the PTO train its examiners to put on their thinking caps when faced with applications for suspiciously broad patents. If the examiners can prevent vague patents from being granted, then that could cut some of the frivolous cases off at the patent trolling pass.
Considering that a large portion of patent trolling involves building an argument based on perspective as much as it is based on the patent, the government will likely never be able to completely dismantle the patent trolling racket. However, if the PTO can cut down on granting patents that allow trolls to more easily back up their claims, as well enact harsh punishments that could scare trolls away from creating those claims, the administration will certainly be on the right track.