President Obama Issues Executive Orders and Legislative Proposals on Patent Reform

On June 4, 2013, the White House announced five executive orders and seven legislative recommendations "designed to protect innovators from frivolous litigation and ensure the highest-quality patents in our system."  The executive orders are:

1. Directing the Patent and Trademark Office (PTO) to establish rules to require patent owners to disclose the real party-in-interest in any PTO proceeding.
2. Directing the PTO to tighten the requirements for functional claiming
3. Directing the PTO to provide education on those who are targeted by patent assertion entities.
4.  Coordinating high-profile events around the country to discuss patent issues.
5. Strengthen enforcement of exclusion orders issued by the US International Trade Commission (ITC).

And the legislative recommendations are:

1. Require anyone that asserts a patent disclose the real party-in-interest.
2. Permit more discretion in awarding fees to prevailing parties in patent cases.
3. Expand the PTO's transitional program for business method patents (where challenges are easier) to include software patents.
4. Better protect consumers and businesses accused of "end-user" infringement.
5. Tighten the requirements for the ITC to issue an injunction.
6. Promote "demand letter" transparency to curb abusive suits.
7. Ensure that the ITC has adequate flexibility in hiring qualified Administrative Law Judges.

The White House also issued a report from the National Economic Council and the Council of Economic Advisers entitled Patent Assertion and U.S. Innovation details the challenges posed by the patent system.

There will much discussion about these proposals in the months to come.  What is clear is that the passage of the America Invents Act in 2011 was not the end of the patent reform debate for this generation.

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