New Bill Takes Aim at Patent Demand Letter Abuses

Since the end of last year when the House passed the Innovation Act with a resounding bipartisan majority, the President has announced his intention to sign the bill, and he made a strong statement in support of reform in this year's State of the Union address. But we've still spent the early months of 2014 working with Senators, and urging the Senate to act on pending legislation. Today, a new bill was added to the list. The Transparency in Assertion of Patents Act, introduced by Senators McCaskill (D-MO) and Rockefeller (D-WV), is an important bill that would protect consumers and small businesses by curbing the patent demand letter problem.

While the Innovation Act brought great gains to our community by squaring-up against patent trolls, the demand letter problem, which for jurisdictional reasons was left out of the House package, remains a grave concern. Last year, when we launched the demand letter database, Trolling Effects, with EFF and a coalition of tech advocacy organizations, we wrote:

The letters demanding these payments are often evasive, failing to include details about the patents, who owns those patents, and the products or services that allegedly infringe. They fail to give recipients the information to make rational decisions, such as whether they should pay the troll, ignore the letter, or go to court to fight it. Just hiring a lawyer to ascertain that seemingly simple information can easily cost well into the tens of thousands of dollars.

The letters raise even more fundamental concerns, too. Because they happen before a legal complaint is ever filed, they are not part of the public record. And once a settlement or license is signed, it will likely include a non-disclosure provision, prohibiting the letter's recipient from talking publicly about its contents. This means that the scope of the problem is often underreported, making it harder for policymakers to understand the true scale of the patent troll problem.

Here is what Sen. McCaskill and Sen. Rockefeller's bill would do:

• Require that demand letters contain certain basic information, such as a description of the patent at issue, a description of the product or service that allegedly infringes it, contact information for the patent's owners, and disclosures of ongoing reexaminations or litigations involving that patent.
• Define as an illegal, unfair, or deceptive practice certain egregious behaviors, such as sending letters threatening litigation without a real intent to file litigation, or sending letters that lack a reasonable basis in the law.
• Give state attorneys general explicit power to to target similar bad behavior in their own states.
• Allow the Federal Trade Commission to enforce these rules by levying penalties of $16,000 per each violation.

Signing this bill into law would go a long way to stopping some of the worst demand-letter abuses. We applaud Senators McCaskill and Rockefeller, and look forward to supporting this piece of legislation as it works its way through the Senate.

Speaking of which, urge the Senate to take action on this bill, and other essential patent reform measures, here. 

2014: Tech Policy Issues to Watch

It seems that every year has gotten busier and busier in the world of tech policy -- and that’s generally a good thing. This morning’s news that a federal court has struck down FCC net neutrality rules is a battle we will have to fight, but we should still take heart from the fact that the issues we have cared about for years are becoming more mainstream, and policymakers around the world are starting to listen. While we haven’t forgotten that 2014 is an election year, we’re confident that on the federal level there is room for improvement in a number of areas close to the hearts of innovators and entrepreneurs. So here’s a quick, early roundup of what we expect to be watching in 2014.

Patents

In the last weeks of 2013, the U.S. House of Representatives passed the Innovation Act, a litigation reform bill targeting patent trolls and their extortive, anti-innovation practices.

This year, we’re pushing for a companion bill in the Senate, a body that has signaled stronger wariness than we encountered in the House. It’s going to be an uphill battle, but we must make certain that 2013 was the last good year for patent trolls. Similarly, the House and Senate Commerce committees have both expressed an interest in demand letter reforms to tackle the current anonymity and vagueness.

Together with our many friends -- retailers, real estate agents, and others -- we will be working closely with the House and Senate to build legislation that is beneficial but does not risk being overturned by the courts on First Amendment grounds. But to lay the foundation for everything we do, we must remind Congress that we are the inventors driving our economy.

User Privacy

The technology we love makes information more accessible and useful. Usually that’s a good thing, but unfortunately it also means that private information sometimes gets out against our wishes. With some high profile breaches (think Target and Snapchat) at the end of 2013 we expect to see more political appetite for privacy “reforms”.

While we have yet to see any formal bills, we expect both federal and state-level reform efforts to tackle the big question of protecting consumer privacy without threatening needed innovation. Up until now, a lack of understanding on the part of lawmakers has often meant that reforms can do more harm than good by threatening to limit the free exchange of data and ideas. We need to be more mindful here, and at the same time we must work within the tech industry to safeguard user data, develop better security practices, and create easy-to-use tools that are available for the average user to help them monitor and protect their data.

Data Localization

We’re already seeing foreign governments use the Edward Snowden revelations as an excuse to slow the growth of US-based technology companies. Most concerning is a push toward what insiders are calling “data localization” -- a requirement that all country-specific user data must be consistently maintained within that country. For example, French user data must only be analyzed or stored in France. That means service providers -- since that data is used to provide a useful service -- will be forced to maintain a duplicate set of infrastructure in every country. This is a problem because most countries lack the intellectual property and security standards we enjoy in the United States. And after all, it’s those policies that have long contributed to this country’s incredible record of innovative success.

Just this week, I had the opportunity to talk to new Commerce Secretary Pritzker about the challenges the U.S. will face should governments such as Brazil and France go ahead with mandated localization. It's something credit card companies have faced for years, but now it’s a growing threat to technology companies whose businesses and users rely on the borderless functionality.

Forced data localization will drive up costs, slow deployment times, reduce innovation, push U.S. jobs overseas, and generally threaten our safety and security. The administration should make time for the right discussions with individual nations, and the U.S. Commerce Department should take the opportunity to caution against such moves, making certain that the legacy of this episode is one of increased freedom and actual security, rather than a paranoid, reactive clampdown on the free flow of information.

Copyright

We’ve been excited to see content distributors updating their revenue models and making more of their content libraries available through new and innovative channels. But we’re always cautious of the incumbent interests that troll the halls of government in the name of protecting creators. Data has shown that often these incumbents are misguided in their assertions.

While no one has offered-up a policy solution -- lest it becomes the next SOPA -- Representative Goodlatte wants to undertake a multi-year, multi-stakeholder process aimed at comprehensive reform. And it all last week with a Congressional copyright hearing.

Immigration

An outdated immigration system continues to be one of the greatest threats to American entrepreneurship and business growth. As we demonstrated in 2013, high-skilled immigration creates jobs and raises wages, and it is disappointing to have to use this year to continue to build our case.

With the mid-term Congressional elections ahead of us in November, the conventional wisdom in Washington generally holds that getting a deal on something as broad and controversial as immigration reform would be a non-starter. But as the pressure continues to mount on Congressional Republicans to take charge and fix our broken immigration system, there may be opportunities to advance that debate -- and even pass legislation that would address the crisis. Having spent much of the last two years making the economic case for immigration reform, it’s up to all of us to keep the pressure on and make sure that an achievable fix becomes law. It’s a long shot this year, but we remain hopeful that as opportunities present themselves, we can all rise to meet the challenge.

Research

Not to be relegated to a footnote, this year, the Engine Research team will keep producing great research as we did in 2013, highlighting the role startups play outside the United States, the importance of access to high-speed connectivity, and user privacy. It is clear that to accomplish all the goals we have set for ourselves -- and for our community -- we must continue to be rooted in the facts: hard data that makes our path clear, our points incontrovertible, and our needs readily apparent. We don’t have the ability to be patient and try “politics as usual”. Jobs remain on the line.

What's Up With Patent Reform?

With momentous bipartisan support not often seen from Congress these days, the Innovation Act, targeting patent trolls and their abusive practices, passed the House of Representatives with 325 votes to 91. That this Congress, with its historic levels of impasse, was able to come together to pass this bill speaks volumes about the extent of the patent troll problem. As some of us know all too well, patent assertion entities have cost US businesses time, talent and money -- not to mention the incalculable chilling effect their tendencies for extortionist litigation have had on innovation.

Now, the patent reform effort moves to the Senate with the Patent Transparency and Improvements Act introduced by Senators Leahy and Lee. The Senate bill reflects some provisions from the House bill, including fee-shifting and a system that would allow stays in lawsuits against customers and end users -- but this bill definitely is more narrowly focused on egregious litigation abuses.

This bill suggests new guidelines for dealing with demand letters. Under Senator Leahy’s Act, demand letters must include a statement of the patent asserter’s identity, the patent being asserted, and the reasons for the assertion. Additionally, the Senate bill would authorize the FTC to act against unfair and deceptive practices associated with the sending of fraudulent or materially misleading demand letters. With a nod to the root of the problem -- poor quality patents -- this bill would also improve patent review procedures requiring that the PTO apply the same claim construction used in court, rather than the “broadest reasonable interpretation.”

While Democratic leaders on the House Judiciary Committee announced their support for the Leahy-Lee approach over Representative Goodlatte's House bill, a number of Senators are urging general restraint after pushback from the university community and unease over loser-pays provisions.

We hope the Senate will act, as the House already has, with determination and all speed to remedy this issue. While there is also hope on the judicial front with the Supreme Court is set to consider the validity of software patents, every day we wait to address the scourge of patent trolling we’re wasting millions of dollars combatting a problem we can begin to remedy with the stroke of a pen. We look forward to working with our allies in the Senate to bring this bill up for a speedy resolution.

Photo courtesy of Talk Radio News Service.