Patent Reform: Where We Are and Where We’re Going (Senate Version)

Tomorrow morning, the Senate Judiciary Committee will markup the PATENT Act, a comprehensive piece of legislation that seeks to address the patent troll problem. We explained what we liked about that bill here when it was first introduced. In short, the most important provisions of the bill rein in an out-of-control patent litigation system that allow bad actors (trolls) to force startups to pay up by threatening expensive lawsuits.

This is a key political moment for patent reform: in fact, it was exactly at this time last year—on the eve of markup in the Senate—when efforts to fix the system fell apart. “Marking up” a bill is a crucial step toward making law; tomorrow, senators on the Judiciary Committee will debate and rewrite the legislative language and then, if everything goes according to plan, vote the bill out of committee and send it to the Senate floor for a full vote.

At the same time, debate continues in the House on a similar but slightly different piece of legislation, the Innovation Act. That bill should be marked up next week and we’ll of course be watching it closely.

At this point in the process, things are moving quickly. There’s a chance that by the time you’re reading this post, some real changes might have happened (if they did, we’ll update you!).

Post Grant Review

This is probably the most important issue that remains up in the air. As part of the last update to patent law, 2011’s America Invents Act, Congress created a procedure called inter partes review (IPR). IPRs allow a party to challenge a patent’s validity at the Patent Office instead of in court. They move quickly, within a year, and are considerably cheaper than litigation. While IPRs remain too expensive for most small startups (with legal fees, an IPR can easily cost upward of $250,000), they represent smart policy that helps rid the world of bad patents. So far the procedure has been successful.

Significant changes to IPR were not originally part of the Senate’s PATENT Act. We wish that were still the case. Yet it appears that IPR is now on the table (more of our thoughts on that here) as some reform opponents from the pharmaceutical industry have conditioned their support on this issue.This is where the process gets a bit strange. Senators who support litigation reform are hard at work trying to hammer out a compromise on IPR that will get the PATENT Act out of committee tomorrow with a wide vote margin, which we support. But, in the meantime, they have left a “placeholder” in the bill to clean up the language around IPR. This might explain why many of us who have long supported reform are not cheerleading as much as usual—not because we don’t support the PATENT Act per se (we still do), but because we actually haven’t seen the final language and, until we do, it’s hard to know whether this will be a full win for startups.

In the meantime, we will keep working to ensure IPR remains a strong and viable option to clear the system of low-quality patents while not ceding ground on the litigation reforms at the heart of the PATENT Act. Those reforms, of course, are the core of what will protect startups and successfully address a patent troll problem that has grown out of control.

Check us out on Twitter where we'll be following the situation closely and updating accordingly. 

#fixpatents: On the Hill with Startups, CEA, and Engine

By CEA and Engine

On Tuesday, Engine and CEA held a startup fly-in to advocate in support of the the Innovation Act and PATENT Act, which would bring critical reforms to the nation’s patent system. We were joined in DC by founders and executives from TMSoft, MapBox, Smart Ride, Jump Rope, Meetup, Kickstarter, and Etsy. Before the jam-packed day of meetings, CEA and Engine hosted these startups from across the U.S. at the Association’s Innovation House on Capitol Hill. The #fixpatents team shared their own stories about battling trolls before conveying to lawmakers how devastating this legalized extortion is to small companies.

Photo courtesy of the Consumer Electronics Association

The day was a great success as we went from office to office, between the House, Senate, and Capitol, for meetings with members of the Judiciary Committees of each house. We used the occasion to disseminate Engine’s latest booklet of stories from startups that have been targeted by patent trolls.

The #fixpatents team came out of meetings optimistic that legislators are committed to passing bills that will fix the current state of abusive patent litigation. Members and their staff were highly engaged, and many were surprised to hear the stories of those startups in attendance. The startups’ experiences very clearly underscored the impact of the patent troll problem and the extortion that happens behind the closed doors of settlement.

Photo courtesy of the Consumer Electronics Association

Jump Rope discussed their inability to recover fees, despite winning their case against a troll that claimed its patent covered reserving the future purchase of goods. And then there was TMSoft who estimated their troll case costing $190,000 in legal work before even setting foot in the courtroom. We reiterated the need for a more level playing field that would afford defendants the chance to fight back.

We’d like to thank Franklin Square Group and TwinLogic Strategies, as well as our Congressional co-hosts for their assistance in coordinating the event. You can see what the #fixpatents team had to say and hear their personal stories about fighting for innovation in the face of troll attacks. Check here for forthcoming videos from CEA and Engine’s Patent Reform Day.

Here’s to getting patent reform across the finish line!

Patent Reform is Good for Startups and Investors

 By Ron Conway and Julie Samuels

This piece was originally published in The Hill: http://bit.ly/1Hv8uXM

The debate over patent trolls rages on, getting some pretty high-profile (and hilarious) attention from John Oliver and action in the Senate, where the PATENT Act, the long-awaited companion bill to the House’s Innovation Act, was recently introduced. This legislation can’t move fast enough—and we are hopeful that the House Judiciary Committee will take the first step this week in passing meaningful reform. Every day without patent reform is another day of trolls targeting additional businesses and individuals. And unfortunately, those who suffer the most are the startups and small companies with whom we work. These are the companies that create jobs, build new technology, and have carried the laboring oar in helping our economy recover.

Which is why the investor community should wholeheartedly support these reform efforts. And most investors do. A survey of 200 VCs and their portfolio companies found “venture capitalists overwhelmingly believe that patent demands have a negative impact on the venture-backed community, with all or most of those assertions coming from” so-called patent trolls. And it’s beenestimated that were it not for troll threats, VC investment in startups would have been $8 billion higher over the last five years alone.

Even more, VCs nationwide, particularly those investing in high-tech companies, by and large support reforming the patent system. In fact, more than 140 of them signed a letter to Congress in support of the very type of reforms in the Patent Act and its companion in the House, the Innovation Act.

This makes all the more confounding a so-called “disagreement” in the venture community surrounding patent reform. Why would any VCs oppose reforms like those in the Patent Act or, the Innovation Act? Let’s look at some of the claims the National Venture Capitalists Association (“NVCA”) has made in testimony and in writing.

First, NVCA’s Scott Sandell expresses concern about the Innovation Act’s fee-shifting provision, claiming that it “effectively mandates the payment of legal expenses by the non-prevailing party in almost all cases.” Put mildly, that is a serious misreading of the current bill. In fact, members of Congress led by Rep. Hakeem Jeffries (D-N.Y.) reached a carefully negotiated compromise that would give courts discretion over when to award fees to a winning party—and said those fees should not be granted when a party’s “position and conduct … were reasonably justified in law and fact.” In English: bring a reasonable case and even if you lose, you won’t be stuck paying the winning party’s legal fees.

Sandell goes on to complain that fee-shifting “means that any entrepreneur who seeks to defend their patent will have to take into account the risk that losing in court could bankrupt their company.” Again, that is not the case. The only entrepreneurs who should in fact face such a risk are those who bring an unreasonable case—the exact type of litigation we are trying to discourage.

Perhaps even more troubling, Sandell claims that investors should not support this provision because it allows for investors to find themselves on the hook for a losing party’s fees. Again, not the case. Both bills carve out investors whose “sole financial interest” in the patent(s) is one who has an equity interest in the company. The Senate bill goes even farther, only applying in cases where the “primary business” party suing is “assertion and enforcement of patents,” e.g., is not making or selling anything based on the underlying technology. Even more, both bills allow for an investor to renounce his or her interest in a patent (and not the company that owns it).

Perhaps what’s most troubling, though, is NVCA’s blanket denunciation of these efforts and apparent unwillingness to come to the table to craft language that would accomplish the bills’ goals, which are not to target venture capitalists but to end the dangerous practice of trolls using shell companies to hide their identities and their assets.

Without fee-shifting, startups facing patent troll litigation have little incentive to put up a defense: even if they win the suit, they are stuck paying as much as millions of dollars in legal fees. The potential promise of seeing some of that money back helps align proper incentives—giving defendants a tool to fight back and encouraging plaintiffs to only bring reasonable cases.

Even more, Sandell claims that the fee shifting will cause more big companies to attack startups because they might recoup attorneys’ fees at the end of a suit. We reject this reading of the bill, but more importantly the data does not support this claim. Big companies are not, generally, suing startups over patents. We do not believe that adding even a million dollars in fees in a victory will change behavior. Will big companies decide that a small change in the balance sheet is worth the time of management to pursue? We think not.   

Opponents of reform aren’t just making erroneous attacks on fee-shifting. Objections to other provisions of the Innovation Act and the PATENT Act similarly leave us scratching our heads.

Take heightened pleading. Reform opponents claim this creates too much work for patent owners, but what does it really require? Setting forth such basic information as who owns a patent, what product allegedly infringes the patent, and what parts of the patent are at issue. This is not rocket science —it’s the kind of basic information a party needs to decide whether to fight or settle. The same is true with discovery reform, which would streamline the process to get the most basic information about a case at the outset before costs balloon out of control, leaving startups and small companies with no choice but to feed the patent troll. The kind of goals we’re talking about—transparency and fairness—should apply to anyone bringing a lawsuit in federal court, small startup to Fortune 500 company.

So again we ask, why would anyone who supports entrepreneurship—especially those who invest in it—not support the level-headed, common-sense and carefully crafted reforms in the Innovation Act and the PATENT Act? Taken in conjunction with strong patent reexam provisions established under the America Invents Act, these bills represent an important package of incentives that would rebalance and restore faith in a broken system. They will level the playing field and give startups and those companies that investors like Mr. Sandell fund tools to fight back against patent trolls, while at the same time not burdening legitimate patent holders who want to defend their rights in court. Without them, patent trolls will continue to prey on the youngest and weakest companies. It’s well past time to put an end to this dangerous trend once and for all. We urge the members of the House Judiciary Committee who want to support the startup and venture capital community to vote in support of the Innovation and PATENT Acts.

Conway is an angel investor and philanthropist in San Francisco. Samuels is executive director of Engine, a non-profit organization that supports the growth of technology entrepreneurship.

 

 

Photos from PATENT Act Hearing

On Thursday May 7th, 2015 Engine Executive Director Julie Samuels testified at the Senate Judiciary Committee hearing on the PATENT Act. Check out these great photos from the hearing, and then go to fixpatents.org to get involved and help pass patent reform this year!

Patent Quality Comments Submitted to USPTO

On May 6, we responded to a request for comments from the US Patent Office (USPTO) about efforts to improve patent quality. Check out full comments here.

We not only emphasized our support for improving patent quality (by ensuring that issued patents satisfy the statutory requirements, do not impinge upon the public domain of prior art, are clear as to their scope, and have a fully developed record of proceedings in the file history) but the duty of the USPTO and every examiner to defend the public and to defend the future from the momentous external costs created by low quality patents, by diligently reviewing applications and weeding out invalid claims at the outset.

We urged the Office to focus its energy on creating data, training materials, and enhanced quality reviews targeted at reducing errors in allowances. 

Remarks from Senate Hearing on PATENT Act

Engine Executive Director Julie Samuels' Oral Testimony as Prepared, Senate Judiciary Committee Hearing on PATENT Act:

Chairman Grassley, Ranking Member Leahy, and members of the committee, I’m Julie Samuels, Executive Director of Engine, an organization started several years ago to help advocate for high-tech, high-growth entrepreneurship. Through a combination of policy analysis and economic research, we represent startups nationwide. It’s an honor to be here today. I look forward to discussing effective solutions to the patent troll problem, especially because this problem disproportionately harms the community of high-tech, high-growth startups I represent.

Today I’m going to tell you about what the startup community needs from a functioning patent system—balance and fairness—and why the PATENT Act would help ensure those things.

Patent trolls are armed with two weapons: low-quality, impossible-to-understand patents on the one hand and the outrageous costs—both in time and money—of patent litigation on the other. So imagine you are a small startup, cash-strapped and hungry, and you get a patent demand from a company you’ve never heard of, claiming to own some basic technology. Your choices are: hire a lawyer and spend valuable and limited resources fighting back, or pay the troll to go away.

Which is why I want to talk today about fairness and balance, two concepts that go together. Right now, we have a system that across-the-board favors patent holders who abuse that system. Those parties have exclusive access to all of the relevant information surrounding the patent—basic things, such as, who owns it? Who else has rights to it?—along with the ability to single-handedly drive up the costs of litigation through discovery and motion practice.

It’s a system that essentially allows for legalized extortion, and that leaves startups nearly powerless to fight back without great personal risk and expense.

Take the experience of Jump Rope, a Chicago startup founded by Peter Braxton. An Air Force veteran and former Combat Pilot, Peter found himself facing a troll suit less than one month after he launched Jump Rope. Peter’s lawyers advised him to settle, but he instead decided to fund the litigation himself. Ultimately the court found no infringement, and that the the plaintiff failed to conduct even due diligence before filing suit—but not before Peter was forced to spend more than $250,000 on his defense.

Or take Life360, an app that keeps over 55 million families safe and connected. After raising $50 million in capital early last year, the company was hit with a troll suit that it decided to fight. In spite of a jury finding the troll’s claims meritless, Life360 still had to spend over $1.5 million to defend itself, with no reasonable recourse to recover that money.

Many of the startups who support reform are also patent owners themselves. Like Foursquare, which currently faces four troll suits. This year’s legal budget set aside enough money for these cases alone that could otherwise have been used to hire between six and ten engineers—good jobs that now do not exist.

There are countless other companies in our network, too, who invest in the patent system yet still support strong reform. Many asked that I not use their names, because they’re so afraid of attracting more troll suits. One startup general counsel told me, and I quote, “The system is set up in such a way that pretty much guarantees that the troll gets paid. It has nothing to do with the patent’s claims, but with the litigation fees. We were bombarded with letters, emails, discovery requests, and motions. It was all meaningless paper, but we still had to spend time and money to respond.”

In each case, startups divert resources from innovating, growing their business, and creating new jobs to fight what are often meritless claims. To make matters worse, the bulk of this money never finds its way back to inventors or research and development departments.

For a small startup, even one troll suit can ruin its business and the mere threat can cause significant disruption. No small business owner should be forced to put her company at risk simply to defend what she knows is right.

Which is why we need the kind of comprehensive set of reforms that is the PATENT Act.

The PATENT Act would bring much needed transparency to the system through heightened pleading and demand letter reform; giving startups tools to understand the scope of the threat they face, helping them decide whether they should hire a lawyer and fight or take a settlement and walk away. The bill creates the appropriate incentives for startups facing meritless suits to fight back: by shifting fees and allowing for real recovery and by reforming discovery, the PATENT Act allows parties a fighting chance in court. Right now, a startup worried about its bottom line has almost no choice but to pay a troll to go away; the PATENT Act would dramatically change this calculation and keep the courthouse doors open to everyone.

Taken together with the strong post-grant review procedures from the America Invents Act, the PATENT Act represents an important package of incentives that would rebalance and restore faith in a broken system. To be clear, no single reform in the bill can accomplish this task alone. It is only when they are all taken together that we can find the missing balance and fairness.

Opponents of reform argue that the proposed changes in the law would have the unintended consequence of making it harder to assert valid claims. In fact, nothing in the PATENT Act would hinder an inventor from monetizing, asserting, or enforcing valid patents, or making claims that are substantially justified or objectively reasonable.

The freedom to innovate has always been a central part of the American dream. For the sake of our economy and our identity, we must not let innovation become a legal liability.

A patent should be valued for what it covers and how it incentivizes innovation, not for its litigation value. The PATENT Act would go a long way to making that the case.

Thank you, and I look forward to your questions.

 

Senate's PATENT Act is a Big Win for Startups

Today, Sens. Grassley, Leahy, Cornyn, Schumer, Lee, Hatch and Klobuchar introduced the PATENT Act, an important piece of legislation targeting a serious patent troll problem. Engine is proud to support that bill.

The PATENT Act, and the Innovation Act, its House counterpart, are effective because they are comprehensive in scope. Each contains a package of incentives that, taken together, insert balance back into patent litigation, giving troll targets the tools to fight back and ensuring that patent holders act responsibly. Importantly, they are carefully crafted to ensure that a patent holder with a high-quality patent and a legitimate claim of infringement will face no barriers to making that claim.

To understand the way these bills work, you have to understand a bit about the patent troll problem. Patent trolls are primarily armed with two weapons: low-quality, impossible-to-understand patents and the outrageous costs of patent litigation, which can easily cost a defendant well into the millions of dollars. So imagine you are a small startup, cash-strapped and hungry, and you get a patent demand from a company you’ve never heard of, claiming it owns some seemingly basic technology. (This really happens. Often. See here, here, here, and here, for example.) Your choices are: hire a lawyer and spend valuable time dealing with the problem or pay the troll to go away, usually for a sum far smaller than what it would cost to hire that lawyer or go to court.

The good news is that the Supreme Court has been busy trying to fix the problem of low-quality patents. The bad news is that we still have a long way to go. Patent litigation remains outrageously expensive and one-sided, giving a patent owner who is willing to take advantage of loopholes in the system the ability to run roughshod over defendants.

This is where Congress, and specifically today’s introduction of the PATENT Act, comes in. Its provisions help right the imbalance in patent litigation through a series of reforms:

• Transparency and Heightened Pleading: Currently, someone can file a patent suit without providing almost any basic details about his or her case, information like how a patent is infringed, what products allegedly infringe it, and even who owns that patent. This information is easily known to any patent holder at the outset of a case, especially those who engage in a responsible amount of due diligence prior to filing a case.  However, getting this information can cost a party being sued tens or even hundreds of thousands of dollars. The PATENT Act would fix that, requiring patent holders to provide this basic information at the outset of litigation and also require patent holders to tell the Patent Office when they transfer a patent. Only with this basic information can parties make informed decisions about how they should proceed. If a party legitimately cannot find some of this information after making a “reasonable inquiry”, it may still file a suit, an important caveat protecting the responsible patent holder.

• Fee-shifting: Currently, little incentive exists for a party to defend itself in court. After years and millions of dollars spent litigating, a successful party will often be sent on its way with nothing more than a Pyrrhic victory. The PATENT Act remedies this by awarding fees to a winning party when a court determines that a losing party’s position was not “objectively reasonable”. This provision carefully strikes a balance between deterring those who bring crappy, unsubstantiated lawsuits and those who bring reasonable, good-faith cases. It also includes important provisions that would effectively end the practice of using shell companies with little or no assets to avoid responsibility. Specifically, a party who doesn’t make or sell anything with its patents will have to show that it can pay for fees if they are awarded. Only with this incentive can many startups afford to take on a troll threat, discouraging those trolls from bringing frivolous cases.

• Demand Letter Reform: Currently, trolls send vague demand letters full of legalese, targeting small businesses and even individuals. Because this takes place before a lawsuit is even filed, there is no public record of how often it happens. We know it is common practice, so we also know that we can’t even properly understand the scope of the entire patent troll problem. The PATENT Act will help fix this by requiring that such letters include certain basic information about the infringement claim and that they do not make false claims about the patent holder’s rights with regard to the patent. Only with these requirements will startups be able to make informed decisions about whether they should respond to or ignore a demand letter and whether they should hire a lawyer.

• Discovery Reform: Currently, discovery is by far the most expensive part of litigation for any party facing suit. For a patent troll who doesn’t make or sell anything, the cost of discovery is next to nothing.  However, it can use abusive discovery practices to drive the costs of litigation even higher than they already are. The PATENT Act would curb some of the worst of these practices by staying discovery until a party has had a chance to try to have a case dismissed. It also makes further recommendations to shift some of the discovery burden from the party producing information to the party requesting it. Only with these reforms can small companies and startups afford to litigate.

• Customer Stay: Currently, trolls love to target a company’s customers, claiming that by using off-the-shelf technology those customers are liable for infringement. This can put enormous pressure on companies that provide products and services (e.g., every company). The PATENT Act provides tools to both the customers and the companies in this dangerous situation, allowing the company to fight the litigation on behalf of its customers. Only with this provision will startups be able to protect their customers.

To be certain, the PATENT Act is not perfect. There are a number of areas where the bill could be made stronger. For instance, we wish the discovery reforms went farther, clearly providing in-statute limits on discovery to those documents directly related to the litigation and requiring a party seeking documents to cover the costs of getting those documents. We’d also like to see the bill more directly address venue and make it easier for parties to move a case out of the Eastern District of Texas, where so many cases are brought and where judges are notoriously plaintiff-friendly. Likewise, we remain concerned that the current customer stay provision only kicks in when the manufacturer is already involved in litigation.  We think improvements could be made to make it any easier for that manufacturer to actively step in on behalf of its customers. Finally, we think the bill could also make it easier and cheaper for parties to challenge low-quality patents at the Patent Office through a process called inter partes review (IPR).  For many parties, seeing a case all the way through to a final decision is not an economic reality, even with the above-discussed reforms. IPR provides a valuable means for a startup or party with limited financial resources to invalidate or narrow the scope of an otherwise overly broad patent.

All that said, we remain proud to support this bill. The heart of it—the litigation reform provisions—represent a hard-fought compromise, spearheaded by Sens. Schumer and Cornyn, who tirelessly worked to get this done. We will continue to work to improve the PATENT Act where we think it needs improvement, and fight off any efforts to water down its provisions. We look forward to seeing this become law.

Statement on Introduction of the PATENT Act

We applaud the introduction of the PATENT Act, an important piece of legislation that would create much-needed balance, fairness, and transparency in the patent system. The bill’s package of incentives directly target a patent troll problem that has, over the past decade, grown out of control, harming countless startups and our economy at large.

The patent troll epidemic has been well-documented by reporters, advocates, and even comedian John Oliver. It costs our economy at least $29 billion annually. But, worst of all, it disproportionately targets startups and small companies. Research shows that 55 percent of companies targeted by trolls have less than $10 million in annual revenue. And a survey of 200 VCs and their portfolio companies found “venture capitalists overwhelmingly believe that patent demands have a negative impact on the venture-backed community.” In fact, it’s been estimated that were it not for troll threats, VC investment in startups would have been $8 billion higher over the last five years alone.

The PATENT Act would give those threatened by patent trolls the tools they need to fight back, redistributing power and creating a more level playing field. These common-sense reforms would require patent owners to provide basic information, and would incentivize them to bring only those lawsuits that are based on high-quality patents and represent legitimate claims of infringement. As such, it creates no unnecessary burden on patent holders. And the bill effectively addresses the serious problem of out-of-control demand letters.

Patent reform enjoys broad bipartisan support in both houses and growing demand from the American people. In the weeks ahead, we'll be redoubling our efforts to ensure the passage of the PATENT Act, a bill that will strengthen the patent ecosystem for all innovators.

We commend the bill’s co-sponsors Sens. Grassley, Leahy, Cornyn, Schumer, Lee, Hatch and Klobuchar and look forward to the PATENT Act becoming law.

We Support the Demand Letter Transparency Act

Engine is encouraged to see that Reps. Jared Polis, Tom Marino, and Ted Deutch have reintroduced their Demand Letter Transparency Act. This bill will bring much needed transparency to ambiguous demand letters that are used as a tool for extortion, often targeting the country’s smallest businesses and startups. A strong patent system requires robust public notice; this bill will ensure such notice by giving the targets of patent trolls the information they need when facing the very real and very serious threat of spurious patent litigation.

This bill does three key things:

• Requires that those entities sending a certain number of demand letters submit information regarding the letter and the patent of interest to the Patent and Trademark Office (PTO).
• Establishes a demand letter database at the PTO that would make letters publically accessible and searchable.
• Requires demand letters include some basic information, such as identifying and explaining how each patent and claim has been infringed.

Any comprehensive patent reform solution needs to include language that addresses the growing demand letter problem. This issue has been particularly problematic for startups and individuals who can’t afford an attorney to review such letters, which often cost upwards of tens of thousands of dollars - and that’s before even entering the courtroom. The Demand Letter Transparency Act is the best bill introduced so far to address the demand letter problem. However, the FTC and states also have a role to play in protecting consumers, and federal legislation must not preempt their ability to do so.

And, of course, demand letter legislation is no substitute for robust patent litigation reform, which will challenge the patent troll business model of using the high cost of litigation to force settlements. The Innovation Act introduced in the House would provide that comprehensive litigation reform, especially when coupled with the Demand Letter Transparency Act. And we call on the Senate to introduce a companion bill NOW. Startups have waited long enough for real relief.

Bill text can be found here.

Despite the Negativity, Revised Patent Laws Improve the System

Procedures for challenging patents after they're granted have cut bogus claims.

This op-ed was originally published in the National Law Journal

When the America Invents Act was enacted in 2011, stakeholders cheered this major reform of the patent system. Negotiated and drafted with extensive involvement from patent holders and patent lawyers, the act established postgrant review proceedings to be conducted by expert administrative judges within the U.S. Patent and Trademark Office. These three new proceedings were touted as more cost-effective and quicker alternatives to litigation — making it easier to challenge, and invalidate, certain low-quality patents. Improperly issued patents are often used abusively by patent trolls against startups and others, and the America Invents Act created mechanisms for taking bad patents out of circulation.

But things have changed. These post­issuance proceedings are now under attack, often by the same entities that helped create them. The main target of criticism has been inter partes review, which allows an issued patent to be challenged, but only on the ground that it is not novel or nonobvious — in short, that it was not truly inventive.

'DEATH SQUAD' LABEL

These popular and effective proceedings have been labeled "death squads" of patent rights, and accused of bias against patent holders. Legislation has even been introduced to curtail these proceedings — all based on inaccurate and misleading statistics on invalidation rates, faulty inferences and conjecture.

Let's look at the facts. Some have ­complained that the inter partes review proceeding is more widely used than expected. Much has also been made of allegedly too high invalidation rates. It is sometimes wrongly asserted that 80 percent of patents are being invalidated. But the critics of inter partes review fail to point out that these proceedings were ­specifically designed to deter challenges to good patents.

First, the Patent Trial and Appeal Board only institutes proceedings if it has first determined that some of the challenged patents are "more likely than not" to be invalidated. Given this high bar, it should not be surprising that a high percentage of these patents are invalidated. If invalidation rates were low, that would indicate a real problem: It would reflect poorly on the board's decisions to institute proceedings, and would mean that too many good patents were being targeted for challenge.

These proceedings have a provision that discourages the filing of weak challenges. Once an inter partes review is instituted, the challenger is barred from seeking judicial review of any matter that could have been raised in the review. Filing an inter partes review without strong grounds will result in a denial of the petition, which effectively "gold plates" the challenged patent, rendering it very hard to attack in the future. In addition, the proceedings are designed to be costly and front-­loaded, another deterrent to weak challenges. Because these proceeding are engineered to take up only strong challenges, one would expect to see relatively high invalidation rates.

But the Patent Office's most recently published statistics do not support the meme of overly high invalidation rates. In reality, just more than 600 petitions (encompassing an aggregate 20,000 or so claims) have been concluded to date. The board has instituted proceedings against 68 percent of patent claims challenged, and declined to institute them against 32 percent. The board has invalidated 36 percent of these claims.

The invalidation rate of total claims challengers have sought to invalidate in these proceedings is even lower — 24 percent. So the board has actually "gold plated" far more patent claims than it has invalidated.

INVALIDATION OF BAD PATENTS

Lastly, the legal landscape has changed dramatically. Recent court decisions have significantly raised the bar for patentability in key areas, making it easier to invalidate bad patents.

And it is unreasonable to criticize the board for implementing the law. Moreover, as the board's decisions are appealable to the U.S. Court of Appeals for the Federal Circuit, time will tell whether anything is flawed about these proceedings. But thus far the court has upheld the board's decisions. None of this is to suggest that the inter partes review proceedings are perfect. From the time the Patent Office was charged with the huge task of implementing the law, Patent Office leadership acknowledged that it would not get everything right the first time. It conducted extensive outreach across the country to gather input from stakeholders, and its implementation of the America Invents Act has been a resounding success.

The board, too, has been widely praised for its professionalism and the quality — and timeliness — of its work. But neither the Patent Office nor the board are resting on their laurels. A change was recently made to the rules to raise the page limits for some filings, and other revisions are in the works. A rulemaking proceeding to address concerns about these proceedings is also pending

Despite that, critics are championing the STRONG Patents Act of 2015, which would upend these proceedings without much, if any, evidence that there is a real problem. This legislation is being presented as an alternative to patent reform, but it would do nothing to address the very real problem of patent-troll abuse. It would only make it much harder for startups and others to use these proceedings for their intended purpose.

We should wait for the Patent Office to conclude its rulemaking and make the changes it has indicated are in the works. In the meantime, we should just let the America Invents Act work.

***

Peter C. Pappas is a senior adviser to Engine Advocacy and the former chief of staff for the US Patent & Trademark Office, where he served from 2009 to 2013.

 

News from first-ever Patent Quality Summit

Last week the Patent Office (PTO) held its first-ever Patent Quality Summit – yet another indication of their focus on improving patent quality.  The two-day meeting was intended to take a hard look at patent quality, evaluate PTO proposals, and brainstorm other ways to address this significant problem.  This discussion is timely, as bad patents continue to stifle innovation. Startups have been victimized too often by patent trolls using low quality patents as fodder for sending baseless demand letters and threatening litigation to extort settlements.

At the conclusion of the summit, there was some general consensus among participants that:

1. Overly broad patent claims are extremely prevalent.  The former Chief Judge of the Federal Circuit went so far as to estimate that 70 to 90 percent of the patents he reviewed included at least some “grossly overbroad” claims, mixed in with solid and borderline claims. With about 3 million patents in force, this statistic underscores the extent of the patent quality problem.
2. Quality has to start with the application itself and the conduct of prosecuting the claims in it.   Patent prosecution lawyers are often overzealous in pressing for the broadest possible claims, even those that are clearly invalid.  The PTO allows for many opportunities to wear down the examiner into perhaps accepting borderline or weak claims.  
3. Poor and incomplete recording of the examiner interviews undermines patent quality.  Historically, the “record” has been lacking in sufficient detail. Patent lawyers press examiners into omitting things from the record so they can later claim that the patent covers more.  Examiners are at a disadvantage when arguing with trained, often aggressive patent counsel, and may too often give in to their demands as a path of least resistance.  As a result, startups -- and the public – are deprived of public notice of the specifics and scope of the patent that the law requires.
4. Claim clarity is essential to quality. A clear record is what enables a court to properly interpret the claims. But it is also essential to putting other innovators and the general public on notice about the scope of the patent. This has too often been overlooked.
5. Examiners need to make greater use of Section 112 - part of the law that ensures the “definiteness” requirement is met by the patent.  Section 112 has been historically underutilized, allowing too many vague and overly broad patents.                

Ultimately, examiners will need the strong support of the PTO’s leadership in order to effect any real change.  The patent prosecution bar is not necessarily keen to accept changes that may limit their room to maneuver around the system, and to pursue the broadest possible claims.  One speaker alluded to an “arms race of overly broad claims”. It is well past time to de-escalate this race, and shrink the often inflated scope of claims back to those that are valid.    

Though the PTO has proposed improving the quality of “customer service” provided to applicants, it must be emphasized that the ultimate customer is the innovation ecosystem and the public. An excessive focus on the applicant often works to undermine quality in obvious ways. Therefore, the PTO should be guided by a focus on the public interest in making new rules to improve quality.    

Report on Impact of Copyright Law on Investment

Engine, Fifth Era Release Report on Impact of Copyright Law on Investment

89% of investors said legal environment makes them less likely to invest

Engine and Fifth Era, an advisory and investment firm, today released a new report entitled "The Impact of Internet Regulation on Early Stage Investment". The report makes a compelling case for copyright reform, and will be used by Engine and other advocates to push Congress to enact reform legislation this session.

In 2014, Fifth Era surveyed 330 investors in eight countries around the world (Australia, France, Germany, India, Italy, Spain, the UK and the US) to assess the degree to which future legal environment might impact their willingness to invest in Digital Content Intermediaries (DCIs). These countries represent 56% of world GDP and 25 %of world population.

The survey found significant concerns among investors in all eight countries around a number of issues, including:

• Legal Environment - Globally investors view the legal environment as having the most negative impact on their investing activities with 89% of the investors surveyed saying it had a modest or strongly negative impact. A large majority of early stage investors around the world feel that the current legal environment has a more negative impact on their investing than either a weak economy or an increased competitive environment.
• Regulatory Ambiguity - When asked what it was about the legal environment that so concerns investors and impacts their investing behavior, the ambiguity in the current regulatory environment was identified as of significant concern. 88% of worldwide investors surveyed said they are uncomfortable investing in DCIs that offer user generated music and video given an ambiguous regulatory framework.
• Uncertain and Potentially Large Damages - In all eight countries surveyed, early stage investors view the risk of uncertain and potentially large damages as of significant concern as they look to invest in DCIs. 85% agree or strongly agree that this is a major factor in making them uncomfortable about investing in DCIs.
• Secondary Effects of IP Infringement Regulations - The second area of consistent concern worldwide was secondary liability. 78% of investors said they would be deterred from investing in DCI’s that offer user uploaded music or video should new anti-piracy regulations increase the risk that their investments would be exposed to secondary liability in IP infringement cases.
• These findings highlight the risk that problematic copyright regulations might greatly curtail or cut off capital from the early stage companies that are driving global innovation, GDP growth and new job formation.

The full report can be found at:

http://www.fifthera.com/perspectives-blog/2015/3/20/6enku92k815grtyz9vfpmn83lqhfsx

VCs Agree: Startups Need Tools to Fight Patent Trolls

Today, one hundred forty early stage investors from around the country joined Engine and the App Developers Alliance in urging Congress to pass meaningful patent reform legislation this session. Their position is consistent with the opinion of the broader venture community that patent trolls are harming the ecosystem in which they operate - reflected in a study by Robin Feldman of NVCA members,. Patent trolls make an uncertain patent system even less hospitable to innovation. And, as reported by Catherine Tucker, this means less financial investment.

Patent litigation abuse is a growing problem, with patent trolls having filed 2,791 new lawsuits in 2014 - up 500% from 2005. It’s also a problem that disproportionately harms startups. 82% of troll activity targets small and medium sized businesses, and 55% of troll suits are filed against startups with revenues of less than $10 million.

In their letter to Congress, the investors write: “[W]e find our portfolio companies facing a dangerous patent troll problem. When a troll sues, or even threatens, a small startup, the results can be disastrous. Many of us have seen young companies fail in the face of such threats. In fact, a recent survey found that 70% of VCs have portfolio companies that have received patent demands, the majority of which come from so-called patent trolls. This is not sustainable.”

Engine and these investors agree that we need legislation targeted at the patent troll’s business model – threatening small businesses with ambiguous claims and taking advantage of asymmetries in the patent litigation system to force settlement.

The current system does not take into consideration a new generation of innovators and tech entrepreneurs. The massive influx of patents in this particular space creates more confusion as to what’s already been invented and who is infringing - and this confusion builds on the large amount of uncertainty that already accompanies patent litigation.

Enter the Innovation Act: a bipartisan bill that was recently reintroduced by Rep. Goodlatte, aimed at making patent litigation a more fair assessment of infringement rather than a tool for intimidation. The Innovation Act is carefully tailored so as not to weaken patents but rather require plaintiffs to bring better cases in a number of key ways:

• By requiring judges to consider end-of-case fee-shifting; the looming threat of fees will pressure bad actors to act more “reasonably” from the beginning of the case in order to avoid the possibility of paying the defendant’s fees.
• By limiting a troll’s ability to drive up the cost of discovery (and by default increase the time it takes to complete this step) early in the case, the language addresses a frequently used method for leveraging the high cost of this step early in a suit to extort settlements.
• By requiring a more comprehensive complaint from the plaintiff at the beginning of the case, the defendant will not only be properly informed but the “reasonableness” of the plaintiff’s claims will be clearer.

These provisions set out better litigation practices that will lead to more efficient litigation. And better litigation reduces the burden for plaintiffs, defendants, and the courts.

At the moment, startup defendants do not have access to justice in the courts. Most simply can’t afford the ongoing costs of patent litigation. If everyone is forced to settle, without invalidating the patent, we feed the beast and encourage a growing number of startup casualties.

The one hundred forty VC partners that signed today’s letter are part of the growing chorus in favor of real patent reform. But we need to make sure everyone’s voice is being heard by Congress, to combat the powerful entrenched interests that are opposed to change. So please go to fixpatents.org to learn more about the problem, and to use our handy tool to tweet at your representatives. Together we can stop patent trolls and protect the future of American innovation.

Tell Congress: It's time to #fixpatents

There’s never been a more critical need to fix our broken patent system than there is right now. Patent trolls filed 2,791 new suits in 2014, up 500% from 2005, and 82% of troll activity targets small and medium sized businesses.

That’s why Engine is ramping up our ongoing efforts to pass meaningful reform legislation. We’re starting with the relaunch of fixpatents.org—a website that will educate and mobilize both startups and individuals around patent reform.

We also released a new white paper (with an accompanying executive summary) detailing the patent troll problem and the need for action by Congress, the courts, and the U.S. Patent and Trademark Office. The paper discusses the very real impact of patent trolls on the startup community, the current state of patent litigation, and why we need legislation now.

Conversations in Congress are ongoing, and we are cautiously optimistic that a bill will pass this session. But we need legislation that is multi-pronged, closing the many litigation loopholes patent trolls use to force meritless settlements. At the same time, we can’t weaken the powerful—and affordable—alternatives to litigation that were set out by the America Invents Act to challenge bad patents. Together, these provisions will equip startups and small businesses with the tools they need to fight back in the courts, keep innovating, and building a competitive economy.

Engine and our partners are pushing for targeted, comprehensive legislation to help startups fight the patent troll problem in the courts—legislation like the Innovation Act introduced by Rep. Goodlatte in January. If we’re going to win this fight, Congress needs to hear from the individuals and small businesses that are disproportionately affected by the troll problem.

So please go to fixpatents.org and use our handy tool to tweet at your Representative and Senators, urging them to pass a reform bill this session.

Why A Patent Verdict Against Samsung Is Bad News for Startups

Last night, I tweeted this:

 

The full story is here, which you should go ahead and read. But the gist is that Samsung lost a $15.7 million verdict in the Eastern District of Texas (the hallowed home of patent litigation) to Rembrandt, a party that claims to own the technology behind the Bluetooth 2.0 standard.

My tweet got a lot of attention (way more than my average missive), including countless replies basically calling me an idiot. Rather than engage with the twitter trolls (see what I did there? Clever, no?), I decided this would be a good time to talk about the patent troll problem and what it means for big companies and startups alike.

For starters, if you think I am particularly worried that Samsung, a huge company, lost a $15.7 million lawsuit, you don’t understand my feelings on patent reform, how the troll model works at all, or, apparently, how the patent system works. Let me tell you what I—and anyone who cares about protecting startups and innovation in this country should—care about.

Last week, when a jury found Samsung infringed three valid patents that supposedly cover the technology behind the Bluetooth 2.0 standard, it conferred on the patent owner, a company that neither makes nor sells anything, a monopoly on that standard. And, according to the Ars Technica article, which cites the patent owner’s complaint, Rembrandt asserts that these patents don’t just cover Samsung’s products, but “all products using Bluetooth 2.0 and later.”

So here is the problem: The inventor and the owner of the patents (two different parties) had nothing to do with the implementation of the popular Bluetooth 2.0 standards. In fact, so far as the story goes, the inventor has had no part in producing anything but 100 patents, which he sells to the current owner to use in patent litigation. Not to create new technologies (the type of progress of science and useful art the Constitution contemplated when it enacted a patent system), let alone to grow new businesses and create jobs. Instead, they serve as a tool for him and the patents’ current owner to extort money out of companies who do want to do those things.

Which is why I tweeted last night that this is very bad news for startups. Bluetooth technology is key to today’s growing technology marketplace. And it’s a market that is already regulated to some extent by the Bluetooth Special Interest Group (SIG), which maintains the technology’s standards. This is a particularly important point: tech companies rely on the concept of interoperability, meaning that anyone can use Bluetooth technology and it will work with different devices across the board. Currently, the SIG facilitates this in the Bluetooth space.

Before this verdict, a company who wanted to use Bluetooth could work with the SIG, a one-stop shop, to get access and necessary legal rights to the proper technology. But now there is a giant unknown: will Rembrandt sue? Demand a license to use Bluetooth? If a startup asks a lawyer about its new project that implements Bluetooth 2.0 or later, it’s likely to get an answer that someone else owns that technology, and it should either not work in that space or get ready to pay up.

I really am not overly concerned that Samsung finds itself on the hook for a $15.7 million verdict (though that’s not good news, either). I fundamentally care about the chilling effect that cases like these have on further innovation and—as I tweeted last night—on startups. Right now, we have a system that is, simply put, broken. We need real reform to get it back in working order, where everyone—big companies, startups, and garage tinkerers—are incentivized to innovate and create.

Patent Troll Targets Crowdfunding Startups

This post originally appeared in VentureBeat and was written in collaboration with D.J. Paul, a member of the Securities and Exchange Commission’s Advisory Committee on Small and Emerging Companies, and the co-chair of the Crowdfund Intermediary Regulatory Advocates (CFIRA).

On Thursday, House Judiciary Chairman Bob Goodlatte (R-VA) re-introduced the Innovation Act, a bipartisan bill targeted at fixing the out-of-control patent troll problem.

This comes not a moment too soon, as patent trolls have begun to target one of the newest areas of innovation and job creation: the crowdfunding industry.

AlphaCap Ventures, an entity that claims to offer “strategic, operations, and financial advisory services in the United States” and whose website resolves to nothing, has so far sued at least 10 companies engaged in some form of crowdfunding. They accuse each company of infringing upon multiple patents (you can see one here) that allegedly cover the very basic workings of managing customer information as it relates to private equity and debt markets.

On its face, the AlphaCap cases look sadly typical. There’s no evidence that AlphaCap has its own crowdfunding platform. Instead it appears to be using its patents as a tool of extortion against those who are actually creating something valuable for our economy.

Crowdfunding platforms have become an important part of the innovation economy, giving entrepreneurs unprecedented access to the capital they need to grow a business or launch a project. They’re also beginning to democratize finance: Women are nearly four times more successful when crowdfunding than when raising funds through traditional means like venture capital.

Unfortunately, many of these platforms are small and young — the most popular targets for patent trolls. In fact, 55 percent of troll suits are filed against companies with revenues of less than $10 million.

Fortunately, the Innovation Act gives the startup community a chance to fight back against trolls. This bill won’t stop patent holders from filing legitimate lawsuits, but it will give those unfairly targeted by trolls important tools to fight back. Among other things, it will require more transparency, shift costs of discovery — one of the most expensive costs of litigation — and shift legal fees when plaintiffs bring particularly baseless suits.

As the Innovation Act makes its way through Congress, it’s sure to meet opposition from some of the same powerful special interests groups, namely trial lawyers and pharmaceutical companies, who thwarted previous attempts at patent reform as recently as last spring. That’s why both startups and individuals who care about innovation need to make our voices heard in the weeks ahead. We need to send a message to members of both parties: Move quickly to support and pass this critical legislation.

Patent Litigation and the Continuing Need for Robust Reform Legislation

Tomorrow, the House Judiciary Committee will hold a hearing to review recent Supreme Court cases in patent law. Do not let the wonky subject matter fool you—this is an important hearing that should help set the groundwork for much-needed legislation that will finally fix the patent troll problem.

To understand what’s at stake, you have to understand a bit about patent reform and why it’s become such a critical issue to the startup community. In the past decade, patent litigation initiated by non-practicing entities—so-called patent trolls—has increased tenfold. This increase has been primarily targeted at tech companies, and the data show that the smallest of those companies—most often, startups—are in fact targeted the most frequently. This led to the recent push for patent reform. And last year, we made some real progress: not only did we come close to passing legislation, but the FTC took up the issue, as did more than 20 states, who introduced or passed legislation, or whose attorney general investigated, and in some instances sued, patent trolls. Even more, the Supreme Court stepped in, deciding six cases unanimously, each of which should help fix a broken patent system.

That’s the good news. The bad news is that opponents of patent reform now claim that because of those victories at the Supreme Court, we no longer need patent reform legislation.

They couldn’t be more wrong.

First, the most important of those cases—Alice v. CLS Bank and Nautilus v. Biosig—deal with patent quality. In other words, tightening the standards around what can and can’t be patented, an update that’s critical to eliminating trolls who thrive on low-quality patents  But it will take years, if not decades, for the impact of these cases to actually be felt. Patents last for 20 years, and the Patent Office has been in the business of granting approximately 40,000 software patents annually, which means at least hundreds of thousands of them currently exist. The vast majority of these patents won’t be reevaluated under Alice and Nautilus unless someone actually challenges that patent, either in court or at the Patent Office. Those challenges can cost tens or hundreds of thousands of dollars. So we don’t expect to see the number of bad patents falling dramatically any time soon.

Second, these cases do not address the patent troll’s other most favored weapon: the outrageous costs of patent litigation. Patent litigation is notoriously expensive, costing each side easily into the millions of dollars in legal fees, not to mention other valuable lost resources, like employee time. Trolls exploit this, often successfully demanding payments to go away instead of going to court. While one important Supreme Court case, Octane Fitness v. Icon, addressed at least some of this problem, it’s so far had limited effect. The Court held that a judge could make a loser pay a winner’s legal fees in “exceptional” cases, but, unfortunately, troll cases are no longer “exceptional.”

Despite help from the Supreme Court, we still need real, robust patent reform that will give judges discretion over when to grant fees, increase transparency in lawsuits and demand letters, even out the burden of litigation on both parties, and help protect technology’s innocent end users.

We’ll be watching tomorrow’s hearing closely to make sure that opponents of patent reform—those who benefit from a broken system—don’t mislead members of Congress and the public by overstating effect of the Supreme Court’s recent docket. We are thankful the Court has stepped in and sent a strong message that the system is broken. But lasting change that repairs the patent system for good will require an act of Congress.

Patent Reform: We’re Ready for Round II

Today, a bipartisan group of House members re-introduced the Innovation Act, an important piece of legislation that would directly address a patent troll problem that has ballooned out of control, costing our economy tens of billions of dollars annually.

You might recall that last year similar efforts got incredibly close to becoming law (In fact, the last time the Innovation Act was introduced, it passed the House with a 325-91 vote!), before stalling out at the eleventh hour in the Senate. We were disappointed at the time, saying then:

"This news is devastating to the welfare of startups who will continue to face the threat of patent trolls. That no agreement could be reached, especially in light of the efforts being made across the committee to find common ground, is also bad news for the economy where annual losses from patent troll litigation are billions of dollars."

More importantly, though, we noted then that the hard work we did transformed the political framework, and said to you, our community: “you changed the conversation from a wonky, back room discussion of legal tenets, to real world examples of harm. With your continued support, and the support of our friends in Congress, we can be on the winning side.”

Well, that time is now.

Despite some important progress in the courts and from the states on patent reform, trolls continue to be a serious threat to the innovation and startup ecosystem. Which is why we need comprehensive legislation to really fix the problem.

The reason why is fairly simple. Patent trolls are “successful” because they are armed with two weapons: low-quality patents, usually covering software-type inventions, that are nearly impossible to understand; and the ballooning costs of patent litigation (it can costs each side easily into the millions of dollars to fight a patent suit in court). Most of last year’s progress, especially an important case called Alice v. CLS Bank, dealt with the first problem, trying to improve patent quality. While that’s good news, it has—at least in the short term—only limited effect.

The Alice ruling can only be helpful in three distinct circumstances: 1) for new patents being issued by the Patent Office; 2) in litigation where a defendant attempts to invalidate the patent at issue; or 3) in one very specific proceeding at the Patent Office called a covered business method review (CBM). Let’s unpack each for a second:

• It’s critically important to have better standards for patentability going forward, but currently, there are approximately 2.24 million active patents in the United States. More than a million of those represent a software-type invention. And each of those patents has a lifespan of 20 years. The potential damage from this existing world of patents alone is enough to warrant legislation.
• As mentioned above, litigation can easily cost each side millions of dollars in legal fees, not to mention years of distraction from a business’ core function. Which makes the barrier to startups essentially impossible to overcome.
• CBM review is a great program, allowing affordable and efficient review of existing patents at the Patent Office. Yet it is currently limited to patents that touch financial products or services and—unless the law changes—the entire program is set to expire in 2020.

What’s more, none of this touches the out-of-control patent litigation system. Which is precisely why we need the Innovation Act. The Innovation Act, and other comprehensive efforts like it, use a combination of provisions to level the playing field, giving defendants more affordable access to make their case in a federal court. These provisions include common-sense reforms like requiring transparency when filing a lawsuit or issuing a demand letter (who are you? what patents do you own? what product do you claim infringes those patents?); shifting fees to winners when a losing party brought a particularly baseless lawsuit; shifting some of the costs of discovery, usually the most expensive part of litigation; and creating a vehicle for suppliers and manufacturers to help protect their customers when those customers become the trolls’ target.

Of all the good work we’ve done so far, the most important piece was earning a seat at the table. For the first time the startup community has a critical voice in this important debate. It is important that we use it and let Congress know the time has come to make the Innovation Act law.

2014 Year in Review - Copyright in the Courts, Legislation on the Horizon

This post is one in a series of reports on significant issues for startups in 2014. In the past year, the startup community’s voice helped drive notable debates in tech and entrepreneurship policy, but many of the tech world’s policy goals in 2014, from net neutrality to patent reform, remain unfulfilled. Stay tuned for more year-end updates and continue to watch this space in 2015 as we follow the policy issues most affecting the startup community.

As is only fitting in a policy area where the law consistently fails to keep pace with technological developments, we are not much closer at the end of 2014 to an overhaul of the nation’s copyright laws than we were in the spring of 2013 when Register of Copyrights Maria Pallante asked Congress to begin work on the “Next Great Copyright Act.” Despite the lack of large-scale reform efforts, 2014 was a fascinating year in copyright issues, with hints at prolonged policy debates to come.

Perhaps chastened by the SOPA/PIPA debacle, Washington took a cautious, deliberate approach to copyright reform efforts this year, getting a lay of the land from a multitude of stakeholders in a series of hearings, roundtable discussions, and panels hosted by the Judiciary Committee, the Copyright Office, and the USPTO. These fact-finding missions covered everything from the DMCA notice and takedown process to the application of the first sale doctrine in digital media. In July, we participated in one of the USPTO multi-stakeholder panels to discuss how massive statutory penalties for secondary copyright infringement can chill innovation and encourage copyright trolls. That policymakers took such a keen interest in soliciting opinions from interested parties about how copyright law needs to change in the coming years suggests that the contours of new copyright legislation will start to take shape in 2015.

While legislators pondered potential reforms, the judiciary was hard at work dealing with cutting edge copyright cases (and, unfortunately, coming to some troubling conclusions). In April, we filed an amicus brief with the Supreme Court in its review of Aereo’s TV streaming business. The Court ultimately ruled that by distributing free over-the-air broadcasts to Internet subscribers via dedicated miniature antennas, Aereo was infringing broadcaster copyrights. In doing so, the Court ignored the plain text of the statutes at issue, employing what amounted to a smell test: Aereo looked like a cable TV service, so it should be governed as one, subject to a compulsory license regime. The ruling injected even more uncertainty into a notoriously vague body of law, opening up avenues for idiosyncratic judicial opinions to shut down new technologies that are in textual compliance with existing statutes.

Even more concerning for startups everywhere, the Federal Circuit in May issued its opinion in the Oracle v. Google case, holding that software APIs—bits of code that allow different applications to communicate and work together—are copyrightable. The implications of this decision are far-ranging, threatening to undermine the competition and open exchange of ideas that helped drive the rapid growth of software and applications. Requiring entrepreneurs to enter into licenses in order to use common APIs will make it significantly more difficult to create widely compatible applications, leading to an increased balkanization of software services and applications. As interoperability decreases, so too does application innovation and consumer choice. Google has appealed to the Supreme Court, and we joined an amicus brief urging the Court to take the case, arguing that allowing companies to claim copyrights on APIs would greatly harm software innovation.

Recent weeks have seen even more salacious copyright news, with leaked documents from the MPAA suggesting that the so-called “copyright wars” of a few years back may return in a big way. The MPAA has apparently been working on reinterpreting the DMCA to accomplish some of the same nefarious goals that SOPA was meant to facilitate (e.g., DNS site blocking), and it has roped several state Attorneys General into taking up its cause of holding content-neutral websites accountable for copyright infringement rather than the folks actually engaging in the “piracy” the content industry so detests. As the SOPA/PIPA fight showed and these leaked documents confirm, the content industry has little regard for the collateral damage its anti-piracy efforts would do to non-infringing activities.

In light of these reports, it seems more and more likely that Congress will begin putting pen to paper on a Copyright Act update in 2015, and it’s crucial that the technology and startup communities help set the agenda, rather than merely reacting to the demands of the content industries. Key on that agenda is restoring sanity to the copyright damages regime, strengthening and clarifying safe harbors for companies that aren’t engaging in direct infringement, and ensuring that the costs of complying with secondary liability rules aren’t prohibitively expensive for startups. The SOPA/PIPA debate showed that the Internet community is paying attention to changes in copyright policy; the next great copyright debate must show that the tech world is ready and willing to advance a proactive agenda that fosters the next wave of innovative technologies.

Patent Reform: We Must Capitalize on 2014’s Momentum to Win in 2015

This post is one in a series of reports on significant issues for startups in 2014. In the past year, the startup community's voice helped drive notable debates in tech and entrepreneurship policy, but many of the tech world's policy goals in 2014, from net neutrality to patent reform, remain unfulfilled. Stay tuned for more year-end updates and continue to watch this space in 2015 as we follow the policy issues most affecting the startup community.

Patent reform—a highly technical and wonky area of the law—is having a moment. A long-overdue moment. While we didn’t accomplish our primary goal in 2014, namely, passing patent reform legislation that would fix a dangerous and expensive patent troll problem, we did make important strides toward leveling a playing field that had been, up until recently, completely skewed in favor of incumbent industries.

In fact, 2014 saw some really important changes to the U.S. patent laws, pretty much all of which benefitted the startup community.  For instance, the Supreme Court has been very active in patent reform—issuing six unanimous rulings last year, each of which came down in favor of the tech industry and/or patent reformers. The most important of those was a case called Alice v. CLS Bank, in which the Court tightened the definition over what can and can’t be patented, which has already resulted in fewer bad patents. This is good news, because a low-quality patent is one of a troll’s favorite weapons.

Even more, 20+ states have taken on patent trolls and the FTC continues to investigate the issue as well. Which is why we’ve argued that, despite the hold-up on Capitol Hill, our community is actually winning the patent reform debate.

That said, there is much work left to do. One of a troll’s favorite weapons might be low-quality patents, but the other is the outrageous cost of patent litigation. To fight a case to verdict can easily cost a defendant millions of dollars and can take years—resources unavailable to many startups and small inventors. This leaves a startup facing a patent threat with two really bad options: waste time and money in court, a terrible distraction from growing a business; or to settle, essentially paying the troll to go away and emboldening it to act again.

Which brings us to legislation. Only Congress and President Obama can fix the lopsided nature of patent litigation and create the proper incentives for troll targets to fight back. The good news is that bills in both the House and Senate appear poised to move in early 2015. Even better, the President has been very supportive of these efforts in the past. The bad news is that the usual opponents of reform—the ones who benefit from the status quo—are gearing up for a big fight.

We’re confident that the momentum gained in 2014 will help push patent reform over the finish line in 2015, but it will not be an easy fight. Continue to watch this space to learn how you can help join our efforts.