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Conservative lawyers question need for patent troll legislation

Grant Gross | Dec. 3, 2014
Legislation aimed at curbing so-called patent trolls may be dead until 2015 after the chairman of the U.S. Senate Judiciary Committee pulled the bill off the committee's agenda, citing a lack of consensus.

So-called patent trolls may not be as big of a problem as some advocates of U.S. patent reform make them out to be, some conservative patent experts say, in a split with many Republican lawmakers.

Congress should step back and determine whether patent trolls are causing serious problems in the U.S. patent system before moving forward with patent reform legislation in 2015, said other speakers at a Federalist Society for Law and Public Policy Studies patent reform discussion Tuesday.

Congress is likely to move forward with legislation next year targeting legal maneuvers often used by patent trolls, generally defined as patent holding companies that use questionable legal methods to extract licensing fees from other businesses.

But Tuesday's event illustrated a split among Republicans on patent reform, with conservative patent experts there wary of legislation that targets patent trolls.

A year ago, the Republican-controlled U.S. House of Representatives voted 325-91 to pass the Innovation Act, a patent reform bill supported by many large tech companies and some digital rights groups. Legislation stalled in the Senate, but with Republicans taking over the majority there as well next year, similar legislation will have momentum, said Noah Phillips, chief counsel for Senator John Cornyn, a Texas Republican and supporter of patent reform.

"There is a problem with patent litigation in the United States today, and it has become a drag" on the patent system, Phillips said.

Not so fast, said other speakers at the Federalist Society, a conservative legal advocacy group. While Federalist Society members and congressional Republicans are natural allies on many issues, many conservative lawyers see the Innovation Act as an erosion of intellectual property rights, speakers said.

Problems with the U.S. patent system and lawsuits by patent holding firms, or nonpracticing entities, appear to be exaggerated, said Adam Mossoff, a law professor focused on intellectual property at George Mason University in Virginia.

In recent years, less than 2 percent of patents ended up in litigation, holding steady with long-term historical trends, Mossoff said. There is no "explosion" of patent infringement lawsuits, and studies suggesting the cost of patent lawsuits run into the tens of billions of dollars a year are "entirely made up," he said.

Before Congress passes a new patent reform bill, new studies about the scope of the problem are needed, Mossoff and other speakers said. The current patent reform debate relies heavily on assumptions pushed by patent reform advocates.

Paul Michel, a former chief judge in patent-specialty court the U.S. Court of Appeals for the Federal Circuit, decried the current patent debate as "juvenile," noting that reform advocates use terms like "trolls" and "patent hold-up."

The push for patent reform comes from "massive PR and what I would characterize as propaganda," Michel said.

 

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