Last week, the White House once again weighed in on the issue of patent troll litigation, releasing a list of legislative recommendations and executive actions “designed to protect innovators from frivolous litigation and ensure the highest-quality patents in our system.” The White House recommendations and actions follow five recent legislative proposals to curb patent troll activity, which are at various stages of consideration by Congress. Some of the legislative proposals focus on increasing the cost of bringing suit for patent trolls, or creating additional regulatory requirements that would be uniquely burdensome to trolls; others focus on making it easier for defendants to invalidate patents held by trolls, or to pursue litigation instead of being pressured to settle. While there are differences in the details, the White House and Congressional proposals all share the goal of deterring litigation by patent trolls and protecting innovation.
Now that the White House has weighed in on legislative action, it seems worth surveying the status of the various legislative proposals and how they line up with the concerns the White House has identified, which we do below. But despite an apparent bipartisan consensus that Congress should pass legislation addressing various concerns about frivolous patent litigation, there is little certainty that any of the legislative proposals will become law in the near term. Similarly, while the White House executive actions are in theory effective immediately, the more substantive actions require rulemaking by the PTO and the ITC before going into effect. Accordingly, those actions will not have any significant immediate impact, and their ultimate effect remains dependent on the results of PTO and ITC rulemaking. The White House statement nonetheless provides further confirmation that political opinion is unifying around deterring litigation by patent trolls.
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