Patent office to Congress: Please let us invalidate more bad patents

October 24, 2013

Acting USPTO director Teresa Stanek Rea. (U.S.  Mission Geneva)

Yesterday, Rep. Bob Goodlatte (R-Va.) introduced new patent reform legislation. Because Goodlatte chairs the House Judiciary Committee, his patent bill has a better shot than most other proposals of actually making it into law.

The bill contains two kinds of reforms. There are procedural changes designed to make it harder for firms to engage in troll-like tactics, like hiding their owners and targeting customers rather than technology vendors. The legislation would also expand a program that allows the patent office to invalidate low-quality patents.

The first set of provisions enjoys broad support among D.C. interest groups, since no one likes companies that engage in abusive litigation tactics. But proposals to invalidate low-quality patents have proven more controversial. Some technology companies earn a lot of money licensing their patent portfolios, and they stand to lose millions if the patent office starts giving their patents closer scrutiny.

On Thursday, the advocates of higher patent quality gained a key advocate: the U.S. Patent and Trademark Office. In remarks at the American Intellectual Property Law Association, acting USPTO director Teresa Stanek Rea called for the expansion of what is known as the "covered business method" program, which would allow defendants in patent cases to ask the patent office to give patents a second look.

"The White House and USPTO support legislation that expands the coverage of this program, for a similar period of time and with a comparable sunset, to include a limited range of software-related patents," she said. She argued that "the scope of reviewed patents should be carefully defined and appropriately limited so as not to run afoul of our obligations under trade agreements."

That's far from the most radical position the Obama administration could have taken. Some reformers believe that all software and business method patents should be subject to heightened scrutiny — or, indeed, that software and business methods should be excluded from patent protection altogether. Nevertheless, with Rea's statement, the patent office has put itself squarely on the side of those who believe patent reform must include measures to get rid of low-quality patents, and not just procedural changes to deter dubious litigation tactics.

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Brian Fung · October 24, 2013