In the past year, patent reform legislation has caused considerable national attention, as the US Congress has put forward various proposals to address the rise of patent disputes by non-practitioner organizations (NPE), commonly referred to as "patent trolls".
President Obama aims to "adopt a patent reform bill that allows our businesses to remain focused on innovation rather than expensive and unnecessary litigation," and last December the US House of Representatives responded with the adoption of the Innovation Act. The US Senate quickly initiated its own patent reform bill, the Transparency and Patent Enforcement Act, which has experienced a number of delays in recent months. In addition to federal action, the Federal Trade Commission investigates patent litigation disputes, while Vermont, Oregon, Virginia, Wisconsin and Idaho have adopted legislation at state level. Such legislation is expected in many other countries.
Despite the revival of activities, there are several unresolved issues about proposed House and Senate bills:
1. TAXATION PROVISIONS
One provision of the Innovation Act includes provisions for the transfer of fees that require the losing party in patent litigation to pay the attorneys of the predominant party. charges without the court finding that the position and behavior of the losing party are "reasonably and factually justified" or there are "special circumstances" that make the award unjust. However, the current version of the Law on Outsourcing Transparency and Patent Enforcement Law does not include any variable fees.
Proponents of the transfer of fees believe it is necessary to deter patent trolls from misusing and frivolous litigation. Critics argue that patent trolls can easily pay for tolls as they will be able to meet a "reasonably justifiable" standard in most cases – either by creating shells that do not have assets within the patents they declare.
2. LETTERS FOR INDEPENDENT POSITIONS
The Transparency and Patent Enforcement Act imposes rules on the specificity of search letters and makes sending a substantially misleading search letter for unfair or deceptive commercial behavior under the Law of the Federal Trade Commission of LPO.
At the same time, the Innovation Act proposes "written letters with deliberate evasion" to be considered "an extraordinary circumstance when assessing whether the lawsuit is abusive". The bill also claims that "inadequate search letters can not be used as evidence of a deliberate violation." However, this bill does not contain a fraudulent commercial provision under the Federal Trade Commission Act.
3. STANDARDS FOR PRE-SERVICE PRESENTATION
The current version of the Transparency and Patent Enforcement Act does not address patent protection standards. The Law on Innovation, however, requires "requiring the applicant to identify any product that claims to violate any alleged patent claim and to describe in detail the specificity of how each product is filled by the product."
Supporters believe that this will make it more difficult for patent trolls to file frivolous complaints against masses of defenders without providing a detailed analysis of the violations against any defensive product. Cells do not believe elevated standards will deter more complex patent trolls.
The patent for trolley law will be revised when the Congress meets at the end of April.
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