Google’s senior vice president and general counsel Kent Walker wrote a blog on politico.com earlier this month attacking patent trolls for “creating a drag on our economy, costing us jobs and putting a tax on our most innovative consumer products”. Walker said too many software patents are being granted and called for action to tackle elastic patent claims and to prevent trolls abusing the litigation system. (And, yes, this is the same Google that paid $12.5 billion to buy Motorola and its 17,000 patents and lost out in the bidding for Nortel’s patent portfolio.)
Now Obama has echoed some of those concerns. Referring to the 2011 Leahy-Smith America Invents Act, the president said: “Our efforts at patent reform only went halfway to the point where they need to go.” He added that he wanted “smarter patent laws” and criticised patent trolls: "They're just trying to essentially leverage and hijack somebody else’s idea and see if they can extort some money out of them.”
There’s a long journey between the president making such a statement and any legislation being passed, of course. After all, the AIA is still in the early stages of implementation; and key changes such as introducing first-to-file do not even come in until next month. This year could also see important interventions from the courts, notably in the Myriad and CLS v Alice cases. So we shouldn’t expect any fundamental legislative change soon.
Having said that, there does seem to be growing concern in the US about both the scope of software patents (consider the publicity about Amazon’s recently granted patent on second-hand e-book selling) and the tactics of patent trolls.
In an interview with Managing IP, outgoing USPTO Director David Kappos singled out fixing software patents as the number one issue for his successor (“We’re not done until the software industry says we got it right”), and the Office this week held the first of two roundtables on the issue. There are already suggestions on what to do, including Mark Lemley’s paper on functional claims and the EFF’s call for including working code in applications.
Meanwhile, patent trolls are coming under greater scrutiny, shown by the Boston University paper published last summer (which suggested that cases are increasing and cost industry about $29 billion in 2011) and the DoJ/FTC hearing on “patent assertion entity activities” held in December.
Adding to the momentum, two federal economists recently argued that patents should be abolished, which seems a radical solution to a specific problem. (Maybe economists should be abolished instead?) Nevertheless, as one source put it: “These things are rarely accidental.” Pressure from industry, academics, lobbyists and even the president himself might be difficult to resist: Congress probably won’t take action any time soon; Kappos’s successor (whoever that is) might have to instead.