"Reform" refers to making changes in something in order to improve it. The STRONG Patents Act, introduced yesterday by Sens. Coons, Durbin, and Hirono, claims to be a "reform" bill—in reality, it would achieve the exact opposite.
As we note in our recent whitepaper, Defend Innovation, we should primarily tackle the root problem of most patent issues: the abundance of poor quality patents. Important tools exist already to challenge bad patents, and these should be strengthened and made less expensive. The STRONG Patents Act's major "reform," however, cripples these means of limiting or scrapping patents that are poor quality.
First, it imposes standing requirements that would bar groups like EFF from challenging bad patents in the public interest. The bill states that you would only be able to challenge patents in an adversarial proceeding at the Patent Office (meaning you get to be there to argue back against what the patent owner says) if you have been sued or if you are "charged with infringement." A measure like this would have effectively stopped EFF from engaging in our Save Podcasting campaign against the patent troll Personal Audio.
This is bad. EFF, through sites like Trolling Effects and those who reach out to us, is in an important position to notice when a bunch of startups and end users are receiving particularly egregious demand letters or suits. Although we can’t challenge every awful patent we see (we simply don’t have the resources), the STRONG Patents Act would prevent us from stepping in to meaningfully challenge any bad patent. The ability for public interest groups like us to do so is critical—patent owners could otherwise craft their demands to make it less worthwhile or feasible for any one accused party to challenge a patent. Affected individuals—podcasters, for example—simply don't have the resources to dispute the patents themselves.
On top of this change, the bill would make administrative challenges to patents more expensive by saddling challengers with costly discovery burdens. Sen. Coons' website claims that this is an attempt to "minimize abusive behavior," but the Patent Trial and Appeal Board already has authority to order discovery if there is a real basis to suspect abuse. The recently created post-grant review proceedings are an efficient and fair alternative to ruinously expensive district court litigation. The last thing we need is a law that undermines one of the few sensible parts of the patent system.
The STRONG Patents Act has a few positive provisions, such as helping clamp down on patent demand letters, but ultimately it is not the reform we need. In most regards, it's a step in the wrong direction. It ignores the biggest problems with the patent system today, namely the bad patents that have proliferated in recent years that are being abused by patent trolls. We need reform that addresses the worst actors and better levels the playing field—reform like the Innovation Act. Tell Congress to reject these fake fixes and to support the Innovation Act today.
