Patent Issues Remain a Priority for the White House

by Orrick, Herrington & Sutcliffe LLP

On February 20, 2014, the White House hosted an event "highlight[ing] progress on the [Obama] Administration's patent policy agenda."  Orrick intellectual property attorney Wesley Helmholz attended the event at the White House's invitation, along with technology company representatives, members of the patent litigation community, and other stakeholders.  The event commemorated the one-year anniversary of President Obama's "call to action" to combat patent trolls and "abusive patent litigation."  White House Chief Technology Officer (CTO) Todd Park, National Economic Council Director Gene Sperling, Secretary of Commerce Penny Pritzker, and PTO Deputy Director Michelle Lee described the Administration's progress on new and existing patent reform initiatives and called on Congress to pass "common-sense patent reform legislation [to] curtail abusive patent litigation and improve transparency in the patent system."

The White House and PTO understand the major problems with the patent system and, instead of merely addressing symptoms, are making upstream changes to address patent quality and claim scope, in addition to ownership transparency.  The White House and the PTO also are signaling they welcome engagement with stakeholders, announcing several upcoming Patent Office talks in the same vein as last year's roundtable discussions and also incorporating private company involvement in several initiatives (such as crowdsourcing prior art).  The effectiveness of the initiatives on patent quality, trolls, and litigation abuse remains to be seen, but the executive branch is doing its part to improve the patent system and reduce abusive litigation.

White House efforts currently underway include:

  • Publishing a draft USPTO rule requiring patent owners to record and update ownership information;
  • Training examiners to rigorously examine "functional claims" for clarity and consistent enforcement;
  • Creating an online toolkit at to help consumers better understand the patent system before entering into litigation or settlement;
  • Bringing academic experts to the PTO to develop and publicize more robust data and research on abusive litigation, while also engaging with "patent holders, researchers, advocates, and others" on high-tech patent issues;
  • Strengthening ITC exclusion order enforcement; 
  • Sustaining a program to "create business incentives for using patented technology to address global humanitarian needs," including, for example, efforts to reduce prices for HIV and malaria drugs.

New executive actions include:

  • Crowdsourcing prior art: the Patent Office is refining its third-party submission program and empowering examiners to more effectively use crowdsourced prior art.  Microsoft has already announced it would provide a free, searchable database of technical literature to the Patent Office.  Other technology companies may soon follow suit;
  • More robust technical training and expertise: the PTO will facilitate input from "technologists and engineers from industry and academia" to provide training and expertise to patent examiners on the state of the art;
  • Patent pro bono and pro se assistance: the Patent Office will provide resources to independent inventors and small businesses that need help with applications.  The Office is also expanding the existing patent pro bono program to all 50 states.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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