As promised I have read through a comparison of provisions in the Innovation Act and the STRONG Act (Disclaimer: Because of time constraints I looked up only one of the three references that BULL provided).
The STRONG bill is endorsed by the Innovation Alliance that IDCC belongs to. So I focused my efforts on the Innovation Act (IA).
Listed below are the IA clauses and my comments in italics.
1. Eliminate Patent Infringement Complaint Form. Require that all complaints identify (i) the claims infringed, (ii) the accused product or process, and (iii) a description of how each limitation of each claim is met by the accused products or process. Not sure if this impacts IDCC Litigation. Seems to me our lawsuits are always specific as to product and claims infringed. Also, the form is going away at the end of 2015 anyway.
2. Attorney fees to Prevailing Party. Current law does the same but only in “exceptional cases”. The IA will award attorney fees “absent special circumstances” or if the losing party’s positions were reasonably justified. I cannot think of an instance (except maybe the recent setback on the 151 patent) where we go into litigation with no reasonable justification. In fact I can see the new law benefitting us in cases involving reverse patent hold-up.
3. Limited discovery. “Would prohibit plaintiffs from seeking discovery on damages and defendants from seeking certain information relating to validity, until the claims have been construed (sic)”. Not sure if this hurts IDCC cases, perhaps this reduces payments to our legal teams.
4. Bad faith Patent Notice Letters. Don’t think that is part of our negotiating tactics.
5. Divided Infringement. The IA does not change current law.
6. Transparency of Ownership – “identify all parties who have a right to sublicense or enforce the patent, each entity with a financial interest in the patent or in the plaintiff, and the ultimate parent of each of the identified entities.” I believe we do that already, but in any case the requirement doesn’t seem that onerous.
7. Suing both manufacturer and customer. I don’t think we have ever done that.
8. Changes to post-issuance proceedings (post-grant review and Inter Partes Review). The IA and STRONG acts are similar, but the STRONG act goes further in ‘stating that patents should be given a “presumption of validity” in PGR and IPR proceedings.’ Since the IA is similar to the acceptable STRONG, I do not see any adverse impact on IDCC litigation.
9. Double Patenting. IA “would clarify the standard currently used (but not described in law or regulation) for the issuance of double patenting rejections in patent applications filed by the same inventor.” Not sure if this impacts IDCC patents. Even if it does, seems like something we can handle rather easily.
10. Fee Shifting. IA does not address USPTO fee diversion.
11. Micro entity status. IA does not address this issue.
In short I am not sure why the board is up in arms over the pending litigation.
By the way, the petition referenced in Loop’s post #399425 is so generic that it could be used against the STRONG act which is actually supported by IDCC through the Innovation Alliance!
JMO
LA
