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Patent trolls and barking dogs

James Nurton

Many readers will be familiar with the curious incident of the dog in the night-time, identified by Sherlock Holmes in Sir Arthur Conan Doyle’s short story “Silver Blaze”. Puzzled, the Scotland Yard detective says: “The dog did nothing in the night-time.” Holmes replies: “That was the curious incident.”

Last week’s US Government Accountability Office report on patent infringement litigation may also be a case of the dog that did not bark. The report, which was required under the America Invents Act, makes a thorough review of the consequences of patent litigation by patent trolls (it prefers the term PME).

It then makes just one recommendation: that the USPTO consider examining trends in patent infringement litigation and consider linking this information to its own examination data “to improve patent quality and examination”. That’s not a lot to ask really, and indeed USPTO Acting Director Teresa Stanek Rea, in her response to the report, undertakes to do so.

Improving patent quality is what numerous reports over the past decade have recommended, and what organisations such as AIPLA, and many patent owners, have urged – so you do wonder what was the point of the GAO’s latest contribution to the debate.

But perhaps the report is more noteworthy for what it did not say. It did not recommend fundamental changes to patentability, a cut in the patent term, shifting the costs of patent litigation or any of the other more eccentric suggestions that have been circulated on Capitol Hill and beyond in recent months. As AIPLA Executive Director Todd Dickinson said to me this week: “This report will give members of Congress a more sober view of the current state of play.”

That doesn’t mean nothing will be done. As Dickinson says: “We prefer the courts be given time to use the new tools under the AIA. We are also working with Congress and the Administration to find surgical approaches to the troll behaviour problem.” There are signs that judges may play a more activist role, and that state officials – such as Minnesota’s attorney general – will also take action where they can to curb possible abuses.

The GAO report will be taken seriously at the highest levels of government, as an objective and thorough analysis of the problems and what can be done about them. That suggests any further changes to patent protection in the US will be made slowly and carefully.


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