USPTO Promotes Patent Litigation Toolkit

Foley & Lardner LLP

If you subscribe to USPTO email updates like I do, then you probably received an email recently announcing that the “USPTO Launches Updated Patent Litigation Toolkit and Hosts Free Webinar about Toolkit Resources.” When one of my colleagues asked why the USPTO is disseminating information on how to “challenge” patents that they granted with a presumption of validity, I decided to open up the toolkit to see what I would find.

The Litigation Toolkit

The USPTO’s litigation toolkit is found on its litigation webpage. The email update described it as follows:

The USPTO has launched an updated online library of free resources on the USPTO website to help smaller companies, “Main Street” businesses, and individual consumers better understand what steps they can take if they are subject to a patent infringement lawsuit and/or if they receive a letter with a demand for money to settle the lawsuit. The USPTO calls the online library a “Patent Litigation Toolkit.” The Toolkit answers common litigation related questions as listed below and provides links to other helpful third party websites.

As shown below, the main page for the toolkit has links to pages with more information on specific topics. The information provided is basic, somewhat incomplete, and generally oversimplifies the issues, but probably is helpful as a starting point.

I do find it annoying that even the “About Patents” page focuses on how to challenge a patent, but what raises more concerns is the “Do I need an attorney?” section, which states:

…. [A]dvice and representation by attorneys is expensive, and may not be necessary if you are convinced that the claims in the patent demand letter are without merit. You may also not need an attorney to perform some straightforward interactions with the sender of the letter, such as requesting greater clarity about the nature of the claimed infringement.

The most important thing I learned in law school is how essential it can be to have an attorney to represent your interests in any legal dispute. I shudder to think of the possible admissions someone acting pro se might make responding to a notice letter, or the incorrect conclusions they might reach without an understanding of the doctrine of equivalents or the doctrine of prosecution history estoppel, At least the section continues with a statement that “However, the assistance of an attorney can be valuable ….”

Blame the White House

So, why is the USPTO providing a resource with information on how to invalidate patents? According to the USPTO, we have the White House to blame:

In June 2013, President Obama ordered the creation of this website to empower those who have received a demand letter or may be threatened with a patent lawsuit with information about their options. In response, the USPTO has created this site.

The USPTO provides a link to a White House “Fact Sheet” summarizing “Executive Actions: Answering the President’s Call to Strengthen Our Patent System and Foster Innovation.” The toolkit appears to fall under this item:

Protecting Main Street from Abuse — To help ensure consumers and main-street retailers know their rights before entering into costly litigation or settlements, the USPTO is today launching an online toolkit aimed at empowering consumers with answers to common questions, information about patent suits, and details about specific patents. The toolkit will include information and links to services and websites that can help consumers understand the risks and benefits of litigation or settlement, and pick their best course of action.

What Do You Think?

You can provide your comments on the litigation toolbox in the comment box on the main USPTO litigation page. If you attended the USPTO webinar on September 18, 2014, I’d be interested to hear about it in the comments below.

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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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