The Problem With Patents: Operating with Blunt Instruments

Yesterday, the Obama administration announced a new effort to curb baseless patent lawsuits, which it believes are stifling innovation and economic activity. The new initiative would take five actions under the President’s Executive authority, and also makes seven legislative recommendations intended, ???to protect innovators from frivolous litigation and ensure the highest-quality patents in our system.???

Taken as a whole, the new actions and recommendations have the potential to dramatically improve the situation. Unfortunately, the most meaningful actions would require Congressional action, meaning that with a few exceptions the initiatives to be pursued under Executive authority can make only incremental progress (e.g., by providing educational materials to help ???main street??? businesses defend themselves if they are sued by trolls). More meaningfully, the administration will be stepping up training of patent examiners.

Almost all of the forceful actions, however, would require Congressional action, and it’s hard to imagine that such action will follow any time soon.?? Meantime, perhaps the brightest hope may, as often is the case, arise at the state level.?? Recently, Vermont enacted a law allowing defendants to recover not only costs from trolls, but damages as well. Such a law can provide a significant disincentive for any owner or licensor of a patent to assert it unfairly.?? If such laws proliferate, perhaps we’ll see a decline in blunt force assertion of invalidly issued and irrelevant patents against innocent vendors and users sooner than later.