By Michael J. Remington and Nathan A. Pollard

The Government Accountability Office issued a report on August 22, 2013 – mandated by the Leahy-Smith America Invents Act [1] – recommending that the Secretary of Commerce direct the Director of the U.S. Patent and Trademark Office to “consider examining trends in patent infringement litigation, including the types of patent and issues in dispute, and to consider linking this information to internal data on patent examination to improve the quality of issued patents and the patent examination process.” [2]

Additionally, the report stated that the number of patent infringement lawsuits has gone up since enactment of the America Invents Act, that software-related patents are often overly broad or have unclear claims, and that patents are “a more valuable asset than once assumed.”[3] The GAO report concluded that “the focus on the identity of the litigant—rather than the type of patent—may be misplaced.”[4]

The actor vs. patent issue has been a focal point of the abusive patent litigation debate in Congress this session. The problem of abusive patent litigation has led to the issuance of a White House report,[5] introduction of six bills,[6] dissemination of a discussion draft,[7] and Congressional hearings on the topic.[8]

The issues with abusive patent litigation and patent quality have also been the subjects of monitoring and analysis by Drinker Biddle’s Intellectual Property (IP) Lobbying and Government Affairs team.

Organizations can consider advocating their positions in a couple of different ways, and Drinker Biddle’s IP advocacy team can assist in this effort. Drinker Biddle is available to assist organizations in authoring their comments or seeking a meeting with members of Congress. For support in this effort and for more information on our capabilities, please contact Michael Remington or Nathan Pollard.

For more information, the GAO report is available at: http://www.gao.gov/assets/660/657103.pdf.


[1] Pub. L. 112-29, 125 Stat. 284 (2011).

[2] See U.S. Government Accountability Office, Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality, GAO-13-465 (August 22, 2013).

[3] Id.

[4] Id.

[5] Patent Assertion and U.S. Innovation, prepared by the President’s Council of Economic Advisers, the National Economic Council, and the Office of Science & Technology, White House (June, 2013) available at http://www.whitehouse.gov/sites/default/files/docs/patent_report.pdf.

[6] See Stopping the Offensive Use of Patents (STOP) Act, H.R. 2766, 113th Cong. (2013) (introduced by Rep. Darrell Issa (R-Calif.) on July 22, 2013); Patent Litigation and Innovation Act of 2013, H.R. 2639, 113th Cong. (2013) (introduced by Rep. Hakeem Jeffries (D-N.Y.) on July 10, 2013); Patent Abuse Reduction Act of 2013, S. 1013, 113th Cong. (2013) (introduced by Sen. John Cornyn (R-Texas) on May 22, 2013); End of Anonymous Patents Act, H.R. 2024, 113th Cong. (2013) (introduced by Rep. Ted Deutch (D-Fla.) on May 16, 2013); Patent Quality Improvement Act of 2013, S. 866, 113th Cong. (2013) (introduced by Sen. Charles Schumer (D-N.Y.) on May 6, 2013); and Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act of 2013, H.R. 845, 113th Cong. (2013) (introduced by Reps. Peter DeFazio (D-Ore.) and Jason Chaffetz (R-Utah) on Feb. 27, 2013).

[7] See H.R. ____, Discussion Draft, 113th Cong (as introduced on May 23, 2013 by Chairman of the House Judiciary Committee Bob Goodlatte (R-Va.)).

[8] See Abusive Patent Litigation: The Issues Impacting American Competitiveness and Job Creation at the International Trade Commission and Beyond Before the Subcomm. on Courts, Intellectual Property and the Internet of the H. Comm. on the Judiciary, 113th Cong. (April 16, 2013) available at http://judiciary.house.gov/_files/hearings/113th/04162013/Binns%2004162013.pdf and Abusive Patent Litigation: the Impact on American Innovation & Jobs, and Potential, Before the Subcomm. on Courts, Intellectual Property and the Internet of the H. Comm. on the Judiciary, 113th Cong. (March 14, 2013) available at http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg79880/html/CHRG-113hhrg79880.htm.

 

Source: Client Alert