'Patent Trolls' Face Rising Tide of Federal Scrutiny
Such a presence could include manufacturing a product, performing research relating to the patent or licensing the patent to companies that are using it. "The reason behind that is patent trolls may have a tough time meeting that requirement," said Matt Levy, a patent counsel for the Computer and Communications Industry Association. In the past this proof came at the end of the case and companies that were defending against infringement suits had already spent vast quantities of money when the complainant may not have had standing to sue in the first place. Meanwhile, the FTC is taking action to get some control over the ravages of patent tolls as they attack businesses, especially small businesses that can't afford to defend themselves. Ramirez said that the FTC was on the lookout for trolls who make false claims for license fees when there's no ownership or standing, or where the only patent that exists has expired.Ramirez also noted that many of the problems with patent trolls are because the PTO isn't as effective as it should have been in detecting patents that shouldn't be allowed. "Trolls are a symptom of a patent system that issues too many patents that are interpreted too broadly and a remedy system that all too frequently issues excessive damages," said Ed Black, CCIA's president, in a prepared statement provided to eWEEK. One of the important parts of the ITC action is to put an end to the issuing of injunctions that keep products from being imported to or sold in the United States. Until this pilot program started, getting an injunction through the ITC was significantly easier than through a federal court. Levy said that federal courts have recently shown a reluctance to issue any injunctions at all in regards to patents. Part of the problem in dealing with patent trolls is the complexity. In addition not all Patent Assertion Entities are bad, and not all are patent trolls. Some PAEs actually help with innovation. "PAEs can help by lowering the barriers for small companies," Ramirez said. "Large companies are slow to respond to demand letters. PAEs can level the playing field. PAEs can also improve liquidity, which can drive funding to startups." But Ramirez also said that PAEs that help small inventors are in the minority—the patent trolls are winning, at least until some agencies clean up their act, when legislation catches up with practice, and when the courts and the PTO clarify their rules.
She said that the Patent and Trademark Office will now allow third parties to submit prior art in patent litigation (meaning they can show the patent did not actually have a valid claim of invention), making it harder to prove nonobvious claims. The PTO is taking steps to improve the quality of software patents, the FTC chairwoman added.