Technology Patent Wars Sign of Robust Innovation

David Kappos, the director of the U.S. Patent and Trademark Office, received a friendly reception from a House committee yesterday as he offered an update on the agency’s progress in implementing the landmark patent reform legislation enacted last September, a billed hailed by many tech firms as a major achievement for their IP-heavy industry.

At the same time, Kappos told the panel that the patent wars common to the tech sector — and particularly smartphones — are hardly a sign that the system is broken, but rather a hallmark of robust innovation.

The American Invents Act (AIA), the first reform to the nation’s patent system in some six decades, and the most comprehensive overhaul in nearly two centuries, left the U.S. PTO with the daunting task of forging ahead with myriad rulemaking proceedings to implement the bill’s provisions.

Those efforts, already well underway, are proceeding in accordance with the deadlines stipulated in the bill.

“I am pleased to report that the AIA implementation efforts are indeed proceeding on schedule,” Kappos told members of the House Judiciary Committee. Seven of the law’s provisions have already taken effect, with nine more working their way through the Federal Register process. Final rules are expected to be published by or before Aug. 16 and take effect on Sept. 16, giving the U.S. PTO at least a month to train its examiners and educate patent filers about the new procedures. “We will succeed in implementing all of them on time,” Kappos told the committee.

A central aim of the bill was to create an environment in which the patent office could clear through its considerable backlog of applications, which had ballooned to more than 750,000, creating a delay of roughly three years between the initial filing and a final decision. Particularly for small businesses or individual inventors, that gap proved untenably long, but the U.S. PTO, which finances its own operations through the fees it charges, could not expect to win a budget appropriation to cover the cost of hiring additional patent examiners.

Instead, the reform bill gave the agency authority to adjust the fees it charges for initial examinations, reviews of contested patents and other services. In early February, the U.S. PTO issued its proposal for raising patent and trademark fees, which Kappos acknowledged amounted to a steep hike, but said that most of the comments his agency has received have been generally supportive and understanding of the economics of the situation. Ultimately, the U.S. PTO might “recalibrate those fees in a lower direction,” Kappos said, though he indicated that the final rates will still amount to a significant increase as the agency works to clear its backlog.

It has already made some progress on that front, Kappos reported, thanks in considerable part to another provision of the bill that established an accelerated review program through which applicants can pay an increased fee for expedited consideration of their invention. To date, the U.S. PTO has lowered its backlog to about 640,000 applications, and is on track to bring that figure down to 600,000 by the end of the fiscal year, Kappos said.

He explained that the ultimate goal is to bring the backlog down to around 330,000 applications by the end of 2015 — a large number to be sure, but a workload that would amount to a manageable docket for each of the agency’s evaluators. By the patent office’s projections, that would bring the average wait for an initial review down to 10 months, with a final decision coming 20 months after the filing of an application. Kappos said that that window strikes an appropriate balance between the twin goals of speeding up the process and giving examiners sufficient time to spend on individual applications to achieve higher-quality patents.

Wednesday’s hearing comes as Judiciary Committee Chairman Lamar Smith (R-Texas), the lead sponsor of the bill in the lower chamber, is soliciting feedback as he prepares to introduce legislation that would modify provisions in the patent reform act to ease the process of implementation and address concerns that have been raised by some industry and academic groups.

A panel of witnesses from various corners of the intellectual property community who testified after Kappos affirmed the director’s assertion that the U.S. PTO rulemakings have been transparent, and each credited the agency for keeping an open door throughout the process, though some expressed concerns over some of the technical measures in the bill.

Those objections include the proposed rulemakings concerning post-grant reviews and inter partes reviews, which some of the witnesses worry are not drawn narrowly enough, potentially leaving patent holders susceptible to costly legal actions.

With the patent reform bill now the law of the land, the U.S. PTO has also been engaging with foreign governments in an effort to iron out the differences among various nations’ systems for recognizing intellectual property.

“With adoption of the AIA congress has enabled the U.S. PTO to promote a new vision of an IP world in which national and regional patent systems are coordinated to create an optimal environment for technological innovation globally,” he said. “Passage of the AIA has provided an opportunity to restart long-stalled discussions with our foreign counterparts toward substantive harmonization that will help U.S. businesses succeed in the global business environment.”

“We are making quite considerable progress with our trading partners overseas on harmonization,” he added.

Additionally, in an effort to decentralize the domestic operations of the U.S. PTO, the bill authorized the agency to open satellite offices around the country. Kappos said that the first U.S. PTO satellite office is slated to open in Detroit in July, and the agency is currently entertaining proposals for where to stand up two additional offices.

Certain provisions in the patent reform bill were also aimed at curbing frivolous lawsuits brought by so-called non-practicing entities, often known as patent trolls, a derisive term referring to individuals or organizations who seek to exercise their patent rights to win monetary damages through lawsuits against alleged infringers, rather than using the intellectual property to bring a product to market.

This is a particularly common practice in the tech sector, but Kappos, asked about what some have described as excessive litigation, drew a distinction between the activity of patent trolls and the lawsuits that legitimate companies have brought against one another, particularly in the segment of mobile devices.

“I don’t think there is any reason to believe that either copyright or patent lawsuits of the kind that we’re seeing in the so-called smartphone wars are a sign of stifling technological innovation. In fact, much to the contrary, we’ve seen this movie before. We’ve seen this movie many times before,” Kappos said.

“It starts with fundamental technological innovation that’s transformative in nature, then others come along and want to do incremental innovation on top of it,” he said. “The original innovators — let’s say the Apples of the world as an example — companies that everyone would say have made transformative changes in our lives, have intellectual property positions resulting from massive investments. They seek to enforce those positions, level the playing field in some way, and you have a dust-up like we’re seeing right now. I do not believe that it’s a sign that there’s anything at all wrong with the innovation environment in the U.S. In fact, I think it’s a byproduct of a very healthy overall innovation environment. These things happen. They sort themselves out.”

Kenneth Corbin is a Washington, D.C.-based writer who covers government and regulatory issues for CIO.com.

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