Now that I have addressed the effect of the America Invents Act and other potential patent-reform legislation on patent law, I would like to address some of the significant steps that the Obama Administration and the Federal Trade Commission (FTC) have taken over the last five years.
Obama Administration’s June 4, 2013, Executive Actions
On June 4, 2013, the Obama Administration announced that it was taking five executive actions intended to improve the patent system. The first action involved promulgating regulations through the U.S. Patent and Trademark Office (USPTO) to require inventors and patent owners to disclose the “real-party-in-interest” of each patent. The USPTO is part of the U.S. Department of Commerce, which is part of the Executive Branch.
The second action involved enhancing the clarity and narrowing the scope of functional claims. Functional claims are claims that include clauses that define an invention by a function that is performed by the invention rather than by a structure. Functional claims have had a controversial history within the U.S. patent system for many years.
The third action involved the development of an online patent litigation toolkit that was posted on the USPTO website. The toolkit was intended to address “abusive” patent litigation. The toolkit provides accused infringers with various resources to investigate patent owners and litigation histories of patents. The toolkit also provides examples of demand letters that have been sent by so-called patent trolls. The development of the toolkit represented a major shift in policy by the USPTO, which tended to avoid involvement in patent litigation by private parties.
The fourth action involved bringing distinguished academic experts to the USPTO to develop and make available to the public more robust data and research on issues bearing on abusive litigation.
The fifth action was intended to strengthen exclusion orders issued by the International Trade Commission.
Patent reform is driven, generally, by Congress and the federal courts. However, the executive branch can take various steps to reform the patent system as well.
Obama Administration’s Feb. 20, 2014, Executive Actions
On Feb. 20, 2014, the Obama Administration reported on the status of the five executive actions that were announced on June 4, 2013, and announced that it was taking four additional actions. These additional actions included support for the Patents for Humanity Program, expanded use of crowdsourcing techniques to identify potential prior art during the patent examination process, improved patent examiner training, and expanded pro-bono programs and assistance.
The Patents for Humanity Program is an awards competition intended to recognize innovators who use game-changing technology to meet global humanitarian challenges.
The Obama Administration also announced that it was going to support various legislative initiatives aimed at patent reform.
Actions by the FTC
Another agency within the executive branch, the FTC has taken two actions relating to patent reform within the last two years. First, the FTC obtained permission to conduct a study of patent assertion entities (i.e., patent trolls) from the Office of Management and Budget on Aug. 14, 2014.
Second, the FTC entered into a settlement agreement on Nov. 11, 2014, with an alleged patent troll that it was investigating for alleged unfair trade practices. The alleged patent troll was also the target of legal action from the Attorneys General of several states, including Nebraska, Minnesota, New York and Vermont.