Patent Reform Is Back…Alice Is Big…The PTO Is Unmasked

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Patent Reform Is Back…Alice Is Big…The PTO Is Unmasked


…and, we’re back, with a post–hibernation blitz of patent news…

  • Patent reform, it’s back too. Virginia Congressman Bob Goodlatte has reintroduced the patent reform bill that died in the Senate last year. The bill’s provisions are designed to pare back patent troll litigation. It would (1) require the plaintiff to identify the patent–owner before filing a lawsuit; (2) require a more detailed explanation in the complaint of the basis for a claim of patent infringement; and (3) require fee–shifting to accused infringers if the patent–asserter’s claim has no reasonable basis in law and fact. Already, coalitions are lining up (again) on both sides of the issue, some (again) lauding Congress for acting, others (again) warning Congress against acting too hastily.
  • Docket Navigator’s Docket Report is reporting a 69% success rate for motions filed by accused infringers seeking a judgment that an asserted patent does not claim patentable subject matter under Alice v. CLS Bank. In just over one month of 2015, more patentable subject matter motions have been filed than in all of 2010 or 2011. With a near–70% success rate, one can easily imagine the high rate of filings continuing.
  • Finally, the patent world is abuzz with news about the Patent Office’s secret program for reviewing potentially high–profile patents. Corporate Counsel (registration required) writes that patent applications diverted into the “Sensitive Application Warning System” or “SAWS” are more than twice as likely to face the buzz–saw of a rejection. FOIA requests have uncovered the details of the once–secret program designed to weed out “silly patents” like a method for swinging on a swing set or a peanut–butter–and–jelly sandwich. Applications were diverted into the program without the applicant’s knowledge based on broad criteria, such as whether the patent might be “of pioneering scope” dealt with inventions that might “generate unwanted media coverage,” or disclosed “seemingly frivolous or silly subject matter.” Data disclosed about the program suggest that closer scrutiny means a greater likelihood of rejection.
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