Yet another bill seeking to thwart patent trolling is doing the rounds. The Innovation Act was introduced by Rep. Bob Goodlatte, chairman of House Judiciary Committee in October and, with wide bipartisan support, recently passed in the House 325 to 91.
The Traklight blog has in the past discussed both patent trolling and various legislations passed to curb this growing bane. The Innovation Act is the latest in the recent legislative trend to combat patent trolling and its direct impact on businesses and innovation. Just like Terminator models improved from the rigid T-800s (Arnold Schwarzenegger) to badass shape shifting T-Xs (Kristanna Loken), the legislations attempting to make patent trolling a less attractive business model are getting better and better with each proposed model.
The Innovation Act is our T-X model. It incorporates parts of the SHIELD Act as well as the Patent Abuse Reduction Act. Some of the changes proposed are noteworthy. There is a new requirement under which the patent holder must provide basic details of the claims at issue including how exactly the product in question infringes said patent. Presently most companies being threatened by infringement suits do not even know how they have infringed upon said patent. This will help nip meritless suits in the bud.
Furthermore, similar to recent legislations, the Act ensures the losing party will bear all legal expenses. Another key change is the level of transparency the Act allows. Now patent trolls must reveal the names of parties that will actually benefit from the litigation. No more hiding behind a number of shell corporations to mask identities. Furthermore, thanks to a new post-grant review process, the window in which a business method patent can be challenged has been expanded. This is a much welcome change as it helps, at least in part, to prevent frivolous patents from existing in the first place.
But the best feature in my personal opinion is allowing delayed discovery. Discovery is the collection of evidence to be used during litigation. Most of the cost of any litigation can be traced back to discovery and as such it is often used as a leveraging technique by lawyers. Despicable lawyers (read: those who represent patent trolls) make the cost of discovery so exorbitant and inconvenient that the opposition has no choice but to settle. But the Innovation Act requires that discovery be delayed until after the court has interpreted the patent and found an actual cause of action to exist. We still haven’t quite hit the sweet spot with this Act, but at least it is a step forward rather than back.