It was the best of times, it was the worst of times. In 2013, patent trolls continued to run rampant, suing everyone from app developers to small businesses to podcasters. But the trolls' abusive tactics finally caught up to them in the policy arena—to put it lightly, they had a miserable year. All three branches of government have set their sights on patent reform, and the fundamental question of the patentability of software has reentered the conversation.
This year, EFF and several tech policy organizations launched Trolling Effects, a database of demand letters that patent trolls use as perhaps their strongest—and stealthiest—weapon. Such efforts on the grassroots level, including excellent media coverage of trolls' extortionate practices and the hit on small businesses, created an opportunity for meaningful reform.
The biggest victory was the passage of the Innovation Act in the House of Representatives, an extremely promising bill that provides a number of fixes to the patent troll problem—from fee-shifting provisions to much-needed transparency reforms. The 325-91 bipartisan vote exemplifies how pressing of an issue this is in the minds of lawmakers—not to mention the introduction of nearly a dozen bills in the last year alone that tackle patent trolls. The White House—which, earlier this year, released its own report and recommendation on patent trolls—came out in support of the Innovation Act. 2014 will see the Senate take its place as the patent reform battleground to watch. We're hoping that, in addition to dealing with abusive litigation tactics, the key issue of patent quality is addressed.
The courts are also getting into the patent mix. After a chaotic opinion from the Federal Circuit Court of Appeals, the Supreme Court agreed to take up the case in Alice v. CLS Bank, which covers the patentability of abstract software patents. These low-quality patents arm a majority of trolls and are fueling the boom in patent litigation.
EFF also submitted an amicus brief in the Supreme Court case Octane Fitness v. Icon Health & Fitness, addressing the near-impossible potentiality for a defendant to get fees after winning a patent case. Not only is fee-shifting—which already exists in the Patent Act—good policy, but it would serve as a deterrent for bottom-feeding patent trolls who are more-than-likely to lose the cases they bring.
Lastly, the executive has its eye on patent reform on both the federal and state levels. The Federal Trade Commission, for example, is investigating the costs of patent trolls on competition. And several state attorneys general are using their consumer protection mandates to tackle the troll problem. (Vermont went a step further and passed an anti-troll law.) The Patent and Trademark Office has also been proactive about this issue; we applaud them for hosting several software patent roundtables across the nation, bringing lawyers, engineers, and businesspeople together to address underlying patent quality issues.
The momentum is there. Patents are on people's minds. Let's make sure 2014 not only brings the reform we want, but also the reform we need.