Congress Poised To Bring Back Unfettered Patent Trolling – Above the Law

Have
you
been
missing
patent
trolls
destroying
innovation
and
making
products
you
like
more
expensive?
Have
you
felt
that,
maybe,
some
lawyers
who
did
nothing
but
send
extortionate
shakedown
letters
weren’t
getting
rich
enough?
Well
then,
good
news
for
you,
Congress
is
looking
to
bring
all
that
back!

In
the
early
years
of
Techdirt,
we
spent
a
lot
of
time
talking
about
patent
trolling,
and
how
terrible,
ridiculous
patents
that
never
should
have
been
granted
were
being
used
as
a
shakedown
mechanism
against
actual
innovators.
Greedy,
shameless
lawyers
would
get
or
buy
extremely
broad
and
vague
patents,
where
there
was
no
intention
to
actually
bring
a
product
to
market,
and
then
they’d
threaten,
extort,
or
otherwise
shakedown,
companies
who
actually
built
successful
products,
often
totally
unrelated
to
the
patents
in
question.

Thankfully,
a
decade
or
so
ago,
the
worst
aspects
of
patent
trolling
were
limited
(though
certainly
not
eliminated).
Changes
to
the
law
made
it
easier
to
challenge
bad
patents,
and
the
Supreme
Court
ran
through
a
series
of
cases
that
made
it
clear
that
terrible
concepts
like
business
models
and
pure
software
were
not
patent-eligible
subject
matter.
Both
have
been
hugely
important.

And
the
Senate
is
looking
to
roll
back
both
of
them.

In
2012,
the
America
Invents
Act
had
some
issues,
but
among
its
good
ideas
was
the
Patent
Trial
and
Appeals
Board
(PTAB),
which
enabled
“Inter
Partes
Review”
(IPR)
of
patents.
This
allowed
anyone
to
challenge
the
validity
of
a
patent
by
showing
prior
art
to
the
PTAB,
allowing
the
PTAB
to
say
that
the
original
patent
examiner
made
a
mistake
and
shouldn’t
have
granted
a
patent.

This
process
has
been
hugely
important
in
stopping
dangerous
and
bad
patents.
In
the
early
2000s, scholars
detailed part
of
the
reason
the
patent
system
was
so
broken
was
the
lack
of
an
antagonistic
process
in
the
granting
of
patents.
You
have
the
party
applying
for
the
patent,
and
then
you
have
the
examiner.
The
examiner
may
challenge
the
applicant
on
certain
points,
but
there
is
no
such
thing
as
a
“final”
no
(even
if
there
is
something
called
a
final
rejection),
such
that
the
applicant
can
keep
trying.
And
there’s
no
one
pushing
back
on
the
other
side
and
pointing
out
why
something
doesn’t
deserve
a
20-year
monopoly.

That
resulted
in
plenty
of
patents
that
shouldn’t
have
been
granted
becoming
weapons
of
mass
litigation.
The
IPR
process
allowed
people
to
challenge
these
patents,
to
show
that
the
sole
patent
examiner
who
handled
the
case
got
it
wrong,
and
to
get
rid
of
the
dangerous
and
unnecessary
monopoly.

Patent
trolls
have
long hated the
IPR
system.
They’ve
challenged
it
multiple
times,
but
so
far,
the
concept has
held
up
in
court,
including
the
Supreme
Court.

The
other
major
change
that
helped
stop
terrible
patents
was
the
Supreme
Court
repeatedly
taking
cases
about
people
patenting
things
that
should
never
have
been
patentable,
and
calling
out
the
patent
office
and
the
lower
courts
for
allowing
this
nonsense.
One
of
these
cases,
Alice
v.
CLS
Bank,
from
a
decade
ago,
effectively
said
that software
and
business
models
weren’t
patentable (though
not
as
clearly
as
it
should
have).
This
followed
on
similar
rulings
saying
that medical
diagnostics and genes shouldn’t
be
patentable
either.

But,
of
course,
some
people
in
Congress
love
patents
and
patent
trolling.
Senators
Chris
Coons
(who,
for
years,
worked
for
W.L.
Gore,
a
company
known
for
its
patent
enforcement,
though
which
was
also
on
the
receiving
end
of
many
patent
lawsuits)
and
Thom
Tillis
have
long
been
supporters
of
ever
more
troll-friendly
IP
laws.

They
have
two
bills
that may
get
voted
on
today that
seek
to
wipe
out
all
of
the
good
things
discussed
above.
EFF
has
a
summary
of
each:

The Patent
Eligibility
Restoration
Act (PERA, S.
2140)
would
overturn
Alice,
enabling
patent
trolls
to
extort
small
business
owners
and
even
hobbyists,
just
for
using
common
software
systems
to
express
themselves
or
run
their
businesses.
PERA
would
also
overturn
another
2013
Supreme
Court
case
that
prevents
most
kinds
of
patenting
of
human
genes.

Meanwhile,
the PREVAIL
Act (S.
2220)
seeks
to
severely
limit
how
the
public
can
challenge
bad
patents
at
the
patent
office.
Challenges
like
these
are
one
of
the
most
effective
ways
to
throw
out
patents
that
never
should
have
been
granted
in
the
first
place.

Both
of
these
would
be
horrific
for
the
future
of
innovation
and
would
bring
back
into
the
foreground
more
patent
trolling
shakedowns
over
completely
bogus
patents
that
never
should
have
been
granted.
It
would
literally
set
innovation
back
a
decade.
And
for
what?
To
help
a
few
lawyers
shakedown
more
innovators?
Who
wants
that
other
than
the
patent
trolls?

Over
the
last
decade,
patent
trolling
hasn’t
gone
completely
away,
but
it
has
become
less
of
an
existential
threat
for
innovators
than
it
was
for
the
first
ten
to
fifteen
years
of
the
2000s.
These
two
bills
would
destroy
that
and
bring
us
back
to
an
era
of
less
innovation
and
more
shakedowns.

The EFF
link has
ways
to
contact
your
senators
to
vote
against
these
bills,
and
I
hope
that
many
of
you
will
do
so.

Congress
Poised
To
Bring
Back
Unfettered
Patent
Trolling

+263 242 744 677

4 Gunhill Avenue,

Congress Poised To Bring Back Unfettered Patent Trolling – Above the Law