Controversial new USPTO Rules would empower Patent Trolls

What is the United States Patent and Trademark Office (USPTO) thinking of? The USPTO's new proposed rules sound good. It would "provide a less-expensive alternative to district court litigation to resolve certain patentability issues while also protecting against patentee harassment." Open-source legal experts, however, from the Unified Patents Open Source Zone, The Linux Foundation, the Electronic Frontier Foundation (EFF) the Open Invention Network (OIN) hear an entirely different message

When they listen closely, they hear a message that will encourage patent trolls, aka non-practicing entities (NPEs), increase patent litigation costs, and inflate the overall volume of patent litigation. We need this like a hole in the head.

Besides open-source, for example, pharmaceutical businesses use patents to keep the price of life-saving drugs high. According to a recent New York Times report. "The House Oversight Committee concluded that … twelve of the drugs that Medicare spends the most on are protected by more than 600 patents." These patents include such important changes as "making a tablet instead of a pill, changing the dose, adding a flavor. When it comes to protecting a drug monopoly, it seems no modification is too small."

And, those are at least patents that protect products made by the patent owners. Most patent trolls don't create a thing. They wait for someone to monetize an idea, and then swoop in like vultures to steal the profits.

Open source entities, even non-profit ones such as the Gnome Foundation, aren't immune. While the Gnome Foundation actually won against the Rothschild Patent Imaging (RPI), they needed the help of other organizations to survive the attack.

Were these new regulations to take effect, the Linux Foundation argues, "Many of the proposed rules appear outside of the USPTO’s authority and contradict the statutes that Congress put in place." In addition, "These proposals put a heavy thumb on the scale in favor of 'patent trolls.' They would also "weaken the Patent Trial and Appeals Board (PTAB), seek to stop everyone (such as Unified Patents) from challenging particularly bad, invalid patents, and will raise litigation costs for all defendants."

The open-source legal community fears, with reason, that the enactment of these rules would likely result in patents that should have been rejected, being asserted against American and international companies, especially medium and small-sized businesses." This would cause additional costs of hundreds of millions of dollars, which would, eventually, hit all of us in the pocketbook.

As OIN CEO Keith Bergelt put it, "The recent advance notice of proposed rulemaking issued by the Director of the USPTO is an attempt to undermine key provisions and the legislative intent of the America Invents Act. Specifically, the imposition of a standing requirement would impair the ability of the Unified Patents' Open Source Zone to reduce the threat to open source software adoption posed by patent assertion entities," This would seriously weaken OIN's patent no-fly zone around Linux and adjacent open-source software technology.

Want to help stop this attempt to protect patent trolls? You can let the USPTO know you want a fair and open system for all, where anyone can seek a review of an invalid patent by commenting on the proposed regulation on the Federal Register. Not sure what to say? Have some sample text templates for Individuals and Corporate Counsel) to fill out and attach for a more formalized comment by you or your organization.

You need to do this. As Mike Dolan, the Linux Foundation's SVP and GM of Projects, explained, "The latest set of proposed rules from the USPTO will make it more difficult for everyone involved in open source to challenge bad patents. The only way to stop this is by providing a volume of comments in opposition, that is why we are calling everyone in the open source community to submit their comments and stand up for this important mechanism to clean bad patents out of the system.”

To this, I can only add: Do it. Patent trolls are already more than enough trouble. The last thing we need is for them to use the regulations to do an end-run around the courts.